A Test For Criminal Speech Acts

A Test for Criminally Instructional Speech Author(s): Leslie Kendrick Reviewed work(s): Source: Virginia Law Review, Vol.
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NOTE
A TEST FOR CRIMINALLY INSTRUCTIONAL SPEECH By Leslie Kendrick*
INTRODUCTION ..............................................................................1974
I. CRIMINALLY INSTRUCTIONAL SPEECH AND THE CIS TEST... 1975 A. What Criminally Is Instructional 1975 Speech?....................... B. FreeSpeechPremises 1977 ..................................... A C. The CIS Test: Basic Overview ..................................... 1979 II. CIS TYPE I: AIDING AND ABETTING................................... 1984 A. Incitement theButtorff and Problem ..............................1986 B. Incitement Criminal and Instruction .........1987 Distinguished Unintended C. Incitement's Consequences .........................1992
III. THE CIS TEST ..........................................................................1995

IV. THE FUTURE OF CRIMINALLY INSTRUCTIONAL SPEECH ....... 1998
A. CIS TypeII: Rice v. PaladinEnterprises........................ 1998 B. CIS TypeIII: Instructional No Speechwith Underlying 2004 Offense.................................. 2. A Recent Case Under StateLaw ............................... 2008 3. A Recent Case Under FederalLaw............................ 2011
1. Facilitating"Civil Disorders" UnderFederal Law .... 2006
V . O BJECTIONS 2014 .............................................................................
2014 Low-ValueSpeechas an Alternative ............... Paradigm The Vagueness an Intent 2017 of Test....................................... 2018 ..................................... Overprotection 2020 ................................................................ Underprotection C ONCLUSION .................................................................................. 2021
A. B. C. D.
*J.D. of SchoolofLaw; D.Phil., Uni2004, expected May2006, University Virginia I Vincent of like Professors BlasiandRobert O'Neil versity Oxford. would to thank for and Kenneth Lillian their and Abraham, BeVier, insightful supervision Professors I alsowould to thank for comments. like AtMichael Klarman their Jennifer helpful Dan Bress, Sarah MicahSchwartzman, Teich, thestaff and of Charles Barzun, trep, Michael and Law Nemelka ClaraVondrich. theVirginia Review, especially
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about how to commit sion that provides technicalinformation from crimes. Such speech maytake manydifferent forms, ranging betweenaccomplices publications to discommunications personal seminatedto a wide audience. It includesspeech thatultimately of to contributes the actual commission a crimeand speech that does not. makes it difficult regulatecriminally to instrucThis diversity criminal tionalspeechin a way thatbothdetersdangerous activity for For example, and maintains strong protection freeexpression. an of mostpeople wouldconsider analysis a building's vulnerability whensharedbetween to terrorist attackto be unprotected speech who then attempt such an attack.Such communicaconspirators in suchan attack tionbetween conspirators theprocessofplanning would provoke a similarresponse.But what if such an analysis or were posted on a websiteexplicitly implicitly that suggesting Whatifit wereposted readerstake advantageoftheinformation? Whatifitwerein an enon a website without suchsuggestion? any of Whatifit werein a on report the safety the building? gineering the articlealerting publicto the weaknessesof a city's newspaper anti-terrorism plans? What if it were in a movie or book thatdeattackon thebuilding? picteda fictional In all ofthesecases,thecontent thespeechremains same, the of This Note will but the contextvaries and, withit, our intuitions. contendthatour intuitions to changebecause theyare responsive reasonableconcernsabout the intentof speakerswho uttersuch of a has speech.The doctrine aidingand abetting longcriminalized on the basis certainsubcategory criminally of instructional speech oftheintent with whichthespeechwas made.This Note willargue catethata similar intent-based approachcan extendto the entire betweenprotected goryand make sound and reliabledistinctions intent-based can adand unprotected inquiry speech. A rigorous above without dress situations ensimilarto those hypothesized of of on croaching therobustprotection speech,regardless itscontent.
test THIS Notewillpropose a FirstAmendment forcriminally instructional instructional speechis expresspeech.Criminally
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instructional Part I of thisNote will describecriminally speech and briefly introducea test for criminally instructional speech instruc("CIS Test"). Part II will considerthe kindof criminally tional speech most routinely under the criminal lawpunished PartIII willshowhow the aidthataids and abets a crime. speech the paradigmexplainedin Part II informs CIS ing and abetting test.PartIV willapplythe CIS testto forms criminally of instrucPart V will address tionalspeech otherthan aidingand abetting. to objections theCIS test.
I. CRIMINALLY INSTRUCTIONAL SPEECH AND THE CIS TEST
A. What Criminally Is Instructional Speech? Professor instrucRecently, Eugene Volokh classified criminally tionalspeech as partof a largercategory called "crime-facilitating Volokh defines speech."'Professor crime-facilitating speechas any thatprovidesinformation in the commission a of speech helpful The a of crime.2 category encompasses wide variety activities: proinstructions,3 viding bombmaking holding seminarson how to committax fraud,4 of exposingthe identities undercover agents,5 the names of crimevictims6 witnesses,' or publishing distributing
2
'Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095,1103 (2005).
Id. at 1097. See, e.g., United States v. Fleschner,98 F.3d 155, 158 (4th Cir. 1996) (rejectinga First Amendmentdefense against tax fraudcharges); United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990) (same); United States v. Freeman,761 F.2d 549, 552 572 (9th Cir. 1985) (same); United States v. Buttorff, F.2d 619, 624 (8th Cir. 1978) (same). But see United States v. Raymond,228 F.3d 804, 808 n.1 (7th Cir. 2000) (enjoining the sale of an "abusive tax shelter"informational program,but notingthat criminalprosecutionwas declined "because the Government was concerned that a criminal of underthe prosecution the appellantswould implicatethe appellants'rights FirstAmendment"). v. Agee, 452 U.S. 280,286 (1981). 5 See 50 U.S.C. ? 421(c) (2000); Haig 6 See Cox Broad. thatthe First Corp. v. Cohn, 420 U.S. 469, 496, 497 (1975) (finding bars sanctionsforthe media's release of a rape victim'sname whenthat Amendment was a matterof public record); Hyde v. City of Columbia, 637 S.W.2d information 251, 263 (Mo. Ct. App. 1982) (allowinga tortaction to proceed when the abduction name foundnot to be a matter publicrecord). victim's of Racing Ass'n, 787 F.2d 463, 465 (9th Cir. 1986) (find7 See Capra v. Thoroughbred in of ing that a publicationwhich revealed the identity participants federalwitness judgmentunderFirstAmendment); protection programwas not entitledto summary Times MirrorCo. v. Super. Ct., 244 Cal. Rptr. 556, 559 (Ct. App. 1988) (finding no
3 4
Id. at 1103.
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and watersupplysystems, even flashing one's maps of municipal to to headlights alertotherdrivers a speed trap.8 instructional Criminally speech is just one part of this larger of crime-facilitating speech. Some crime-facilitating category technical"how-to"information, such as how to speech provides make a bomb or evade incometaxes. This is criminally instrucnontionalspeech.Otherkindsof crime-facilitating speech supply information committingcrime. a technical on For example, newsa or which publishthe name of a crimevictim witness, paper might use thatperson.The someonemight to locate and retaliate against does not tell anyone to use the information that in newspaper muchless explainhow to do so. Nevertheless, speech its manner, aid someone in committing crime and thus a mightmaterially as one's headspeech.Similarly, flashing qualify crime-facilitating thatthereis a police vehicle warnsotherdrivers customarily lights that or speed trapahead. This is communication helps to facilitate it is not how-to but It information. does not explain law violation, that theyshould stop speedingand not resume to otherdrivers a untiltheyhave passed the policemanahead. It is simply signal ifthey lead themto take suchactionon their know thatmight own, itsmeaningand choose to followit. These are examplesof crimecriminal instruction. speechthatdo notconstitute facilitating Professor thatthesedifferent Volokh is correct Although types criminal instrucof speech all help facilitate crimes, distinguishing tion fromother formsof crime-facilitating speech makes sense and On both analytically practically. an analytical level, different invoke different varietiesof crime-facilitating speech legal doca issues that trines:Publishing witness'sname implicates privacy a publishing recipefora Molotovcocktaildoes not. On a practical instructional level, public discussionof criminally speech (albeit thatcategory speechas itsown entity. of Recentattreats limited) has focused criminal to on instructention crime-facilitating speech has produceda study, and Contion: the Departmentof Justice
a namewhendoingso increased his Amendment to First privilege report witness's of risk harm). No. Statev. Walker, 1-9507supranote 1, at 1102n.40(discussing 8 See Volokh, a Amendment 03625(Williamson (Tenn.)Cir.Ct.Nov.13,2003)(accepting First Cty. of for to "RadarTrap"bedefense obstruction justice up charge holding sign reading sidetheroad)).
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intargeting gress has passed a law, both specifically criminally structional speech.'Because suchspeechis at specialriskof crimiit to nalization, seemsparticularly important findthe testbest taithanattempt rationalize to loredforsuchspeech.'0 rather the Thus, of crime-facilitating thisNote focusesexlargercategory speech, instruction. clusively upon criminal B. FreeSpeechPremises certainassumptions about the purposesof As an initialmatter, are the FirstAmendment worthemphasizing. First,thisNote assumesthatFirstAmendment shouldextendto as much protections as of expression possible,regardless its perceived"value" to civic This approachcan reston either tworationales: of discourse." first, as of and thatexpression such is worthy protection;'2 second,and less controversially, the rangeof expression that valuableto political discourseis expansive,not narrow,and therefore should be as construed broadlyas possible."Althoughthisapproach,based is on either bothrationales, highly or it need not speech-protective, of condone the protection criminal speech forprophylactic purof Amendment workhere, at poses. Undertheconception theFirst of all expression untila demonenjoysa presumption protection state interest that stratedharmor othercompelling contravenes presumption.
1997 on 'See, e.g.,18 U.S.C. ? 842(p)(2) (2000);U.S. Dep't of Justice, Report the of at Information, http://www.usdoj.gov/criminal/cybercrime Availability Bombmaking accessed 26, /bombmakinginfo.html (last August 2005). "o a more see note1. For Volokh, comprehensive approach, generally supra For an opposing viewof theFirst Amendment, e.g.,LillianR. BeVier,The see, Amendment Political Into of First and and Speech:An Inquiry theSubstance Limits 30 H. and Principle, Stan.L. Rev. 299,300 (1978); Robert Bork,Neutral Principles 47 SomeFirst Amendment Problems, Ind.L.J.1,20 (1971). 12See, S. 8-9 e.g.,Franklyn Haiman,"Speech Acts" and the FirstAmendment has been arguedthatthe mostdefining of characteristic whatit (1993) ("It often meansto be human [our]symbol-creating symbol-transmitting is and And capability. ifthatis whatbeinghuman mainly is than about,whatcouldbe moreimportant a Amendment protects nurtures and First that it?"). C. Post, The Constitutional of Concept PublicDiscourse: Outrageous 13 See Robert and Democratic 103 Harv.L. Deliberation, Hustler Magazinev. Falwell, Opinion, Rev. 601, 681 (1990) ("[A]ll speech is potentially relevant democratic to self... governance .").
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based on the use or Second, this Note eschews distinctions under the First "value" of certain types of communications of instructional The Amendment.'4 category criminally speech recarefuldistinctions. mustbe possible to distinIt quires drawing betweencopresentedin, say, a conversation guish instructions a handbook,an anarchist website, conspirators, law enforcement and a true-crime novel. Intuitions about whereto drawtheline in such cases could be based on assumptions about the value of certain typesof speech and its importance the goals of the First to Amendment. thenbecomes an exercisein balancing Line-drawing the potential harmof such speech againstits potential value. Prea recipefora bombposes the same potential harmto sosumably it cietywhether occursin a novel or on a website.If we wantto and nottheformer, the does it mean thatwe becriminalize latter lieve the novel has more to contribute our societyand thatthe to FirstAmendment it privileges over the website?This Note does not make thatkind of determination. it Furthermore, arguesthat of instructional regulation criminally speechneed not be based on such distinctions. Instead,a simpleand reasonedapproachcan be derivedfrom criminal and,morespecifically, law from conthe the ceptofaidingand abetting. of thisNote recognizes thatregulation speechis notjust a Third, FirstAmendment it issue; rather, is also an issue forthe criminal law. Any speech that does not have the protection the First of is Amendment underthe criminal potentially open to regulation law. Meanwhile, mostprosecutions speech undercriminal of statutesprompt FirstAmendment a defense some kind, of wherein the defendant claimsas an issue of factthathis speechwas notunprotectedcriminal but some othervariety fully expression protected Amendment. also Suchprosecutions mayinvolve facial bytheFirst in to thestatute questionon FirstAmendment challenges grounds.
14Professor Volokh's section on "single-use" and "dual-use" crime-facilitating demonstrates the various purposes which such speech can speech comprehensively serve.See Volokh, supra note 1, at 1126-27.While Professor Volokh distinguishes the issue of "use" fromthatof "value," the two ultimately seem to coalesce. It is importantthatcertaincrime-facilitating uses because we all have asspeech has legitimate sumptionsabout what legitimateuses are and why the First Amendmentprotects them.These assumptions traceback to a largerconceptionof whattypesof generally speech the FirstAmendmentprotectsand why.This conception,in turn,usuallyhas to something say about whyspeech has value in our society.
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This Note acknowledges this relationshipbetween the First Amendment and the criminal law and attempts draw on both to areas. A C. The CIS Test: Basic Overview kindsof criminally instructional There are at least two different offense. One typehelps to bringabout an actual criminal speech. while offering criminal does not result(or The other, instruction, in of These twotypes has notyetresulted) thecommission a crime. receiveverydifferent treatment instructional of criminally speech of theformer a form aidingand is law. undercurrent Conceptually, The latcriminal and as such has longincurred penalties. abetting but terhas been outlawedby some stateand federalstatutes, the Courthas neversquarelyaddressedthe constitutionality Supreme underthe FirstAmendment. of such statutes Thus, the constituin instructional of speech resulting an actual tionality criminally of whilethe constitutionalitythe other crimeis considered settled, is unknown. type doctrine The aidingand abetting providesa suitablemodel for instructional all speech. That docregulating formsof criminally to betweenconduct a effort distinguish trinerepresents deliberate is to thathappensto contribute a crimeand thatwhich so boundup as in a criminal activity to be part of it. When the "conduct"in between is speech, this inquiryis about distinguishing question whichintenwhichis protected, and "speech-acts," pure speech, and to contribute criminal activity forthatreasonlackFirst tionally Amendment protection." is of features aidingand abetting its One of themostimportant an To of mensrea requirement. be guilty aidingand abetting, actor This to to musthave intended contribute the underlying offense.16 of crimidecisionon the part was intent requirement a deliberate In in nal lawyersand legislators the twentieth century. the early
" He rationale. uses of the KentGreenawalt Professor provides bestexplication this to that subject are ofspeech utterances" describe to theterm types "situation-altering of law the under civiland criminal becausethey are,at bottom, "ways doregulation and KentGreenawalt, not Crime, theUses of Speech, things." ingthings, ofasserting the believes suchspeechis beyond scope Greenawalt 58 Language (1989).Professor Amendment ofFirst protection. 16 See 18U.S.C. ? 2 (2000);ModelPenalCode ? 2.06(1962).
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some federal circuits a crafted stringent intent partof the century, for As articulated requirement aidingand abetting. mostfamously Learned Hand, thisstandard thatthe aider "in by Judge required withthe venture, in some sortassociatehimself thathe participate it as in something he wishesto bring that he seek by his about,that referred as havto actionto make it succeed.""This is commonly a "stake in the venture."' Other circuits, however,required ing This difference-between onlya mens rea of knowledge.19 having an interest the success of the crimeand merelyhavingknowlin edge of its probablecommission-wassettledforfederalcriminal law in Nye & Nissen v. UnitedStates,wherethe SupremeCourt in an quoted JudgeHand's formulation the courseof adopting intentstandard.20 A fewyearslater, same questionsparkedintense the debatedurof the drafting the Model Penal Code.21 The drafters ing originally a with proposedthatliability dependupon whether person,"acting that[another] or knowledge personwas committing had the purthe facilisubstantially pose of committing crime... knowingly, The tatedits commission."22 requirement "substantial" of facilitation was an attemptto offsetthe lower mens rea standardof a but Law Institute reknowledge, after floordebatetheAmerican elected to require a Instead,the drafters jected the provision.23 mensrea of intent. Thus theModel Penal Code demandsthatthe aider have "thepurpose of promoting facilitating commisor the The intent was and significant feature requirement a deliberate in theformulation aidingand abetting of In doctrine. thecontext of and abetting, attachesto someone criminal liabilityonly aiding
1 isSee, e.g.,Richard Bonnieetal.,Criminal 579(2d ed. 1997). J. Law
sionoftheoffense."24
v. States Peoni,100F.2d401,402(2d Cir.1938). United
v. 112 19 See Backun United States, F.2d635,637(4thCir.1940)("Guiltas an accesnot a of sory depends, on 'having stake'in theoutcome thecrime... buton aiding and assisting perpetrators The sellermaynotignore purpose which the .... the for thepurchase madeifhe is advised that is of purpose "). ... 20 See Bonnie, note18,at 580. supra Model Penal Code ? 2.04(3)(b),Tent.DraftNo. 1 (1953);see also Model Penal Code ? 2.06 in Model Penal Code and Commentaries: Draftand Revised Official 295 Comments, (1985). note18,at 580. see also Bonnie, supra 23 See ModelPenalCode ? 2.06(1962); 24 ModelPenalCode ? 2.06(1962).
21
336 U.S. 613, 619 (1949).
22
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who is an accomplicein a literalsense-who shareswiththeprinin cipal an interest the criminalventureand, in Judge Hand's in thathe wishesto bring words,"participate[s] it as something If is is about."25 intent so crucialevenwherethere an underlying ofmoreso whenwe are considering it criminal fense, shouldbe even wherethereis no underlying offense all. If mereknowlat liability is edge or recklessness not enoughto convictsomeone who has it contributed an actualcrime, certainly to shouldbe insufficient to convict someonewhohas not. of the Drawingon thefeatures aidingand abetting, proposalbea low formulates test for when criminally instructional speech should lack constitutional protection. Speech that fails to merit FirstAmendment underthe testis open to regulation protection law. the bythecriminal The CIS testwouldrequire following: has offense beencommitted, with a speaker a I. Wherea criminal direct to and of relationship theprincipal direct knowledge his and abetting plansshouldbe heldliableforaiding upona showof hisintent thathisinstructions in thecommission assist of ing thecriminal offense. offense been committed,speaker has a with II. Wherea criminal no direct to theprincipal no direct and of relationship knowledge hisplansshouldbe heldliableonlyupona showing (1) hisinof tent that instructions inthecommission a criminal his assist of offenseand (2) a clearconnection between typeof offense the he intended foster thetype and to committed theprincipal. by offense been committed, speaker has a III. Whereno criminal criminal instructions shouldbe held liable onlyupon a giving of to of showing (1) his intent assistin thecommission a crime and (2) a high likelihood hisspeechwillfacilitate crime that a of thetype intended. he The CIS testappliestherequirements mensrea and actualocof currence(or highlikelihood)of harmto a wide variety situaof tions.We can imaginea scenarioin whicha speakerhas giveninformationdirectlyto a principal with the purpose that the
25
v. 402 United States Peoni,100F.2d401, (2d Cir.1938).
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thenhas used information put to criminal be use, and theprincipal a the information commit crime.This is classicaidingand abetto underPartI of thetest.We also can imagand is criminalized ting in to ine a situation whicha speakerhas suppliedinformation a moregeneralaudiencewiththe purposethatit be put to criminal to has use, and some audiencemember used theinformation commita crime.This is slightly different from classicaidingand abetof the but ting, because it preserves keyelements aidingand abetof and ting-a mensrea ofintent thecommission an actualcrimea it is unprotected underPart II of the test.In contrast, speaker the to who disseminated information a wide audience without inas thewriter a crime of tentthatitbe putto criminal purpose(such renovel or a chemistry textbook)would not be held criminally to even if some audiencemember used the information sponsible, a commit crime. rePart III of the testaddressesscenariosthatare the farthest In the movedfrom classicaidingand abetting paradigm. suchsituawithcriminal tions,a speakerhas suppliedinformation potential, use but no one has put it to criminal (yet). The CIS testprovides unlessthe thatsuch speech is protected the FirstAmendment by Thisis,clearly, a for speakerintends it to be used to commit crime. of a testthatfocuseson the subjective intent the speakerrather thantheobjective harmposed byhisor herspeech.Underthistest, if a websitecontaining recipesforpipe bombswouldbe criminal its makersintendedthe recipesto be used againstlaw enforcement wouldbe legal but site agents, a mirror withthe same information or ifitspurposewereto educatereadersin the abstract, even simof to exercisethe FirstAmendment to freedom expresply right sion. So longas thewebsite'sauthors notintendanyoneto use did therecipesto breakthelaw,their speechwouldbe protected. It The CIS testis at once quite simpleand quite complicated. is thecriminal because it is in no waynovel:It merely imports simple law. Some law's basic concern mensrea intoFirstAmendment for are thatmensrea inquiries themselves quite difficult might object or complicated,26 thatis an objection theCIS testonlyto the to but law in general.The extentthatit is an objectionto the criminal for and our law criminal requiresmensrea inquiries manycrimes,
26
See Volokh,supranote 1, at 1185.
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for withthat.In addition, society the mostpartseemscomfortable test theCIS testis nottheonlyFirst Amendment to consider mens rea. Defamation law distinguishes between reputationalharms withmalice or recklessness and those committed committed with test some othermensrea.2 The Brandenburg forincitement allows of the criminalization politicaladvocacywhenit "is directed into or producing imminent lawlessactionand is likelyto incite citing or producesuchaction."28 The requirement the speechbe "dithat rectedto" inciting violenceis, forbetter worse,often or glossedas an "intent" similar thatproposedin the CIS test.29 to requirement, often Whilejudicialincitement have failedto takethisininquiries tentrequirement will be shownbelow), such a reseriously(as is quirement evidencethatthe conceptof mensrea is no stranger law. to First Amendment At thesame time, the not however, CIS testis complicated, in itbut because the relationship betweenthe aidingand abetting self, doctrine and the FirstAmendment become deeplyconfused. has of While the doctrine aidingand abetting clear and well estabis whentheyencounter lished,courtshave difficulty speechthataids and abets. Courtsthatwould readilyconvicta defendant supfor confounded when the defenplyinga handgunfindthemselves to dant'scontribution a crimeis speech-based. These courts, concerned that the First Amendment must enter the analysis often reachtheir decisions thewrong a somehow, means,taking by detourthrough FirstAmendment doctrine thatultimately threatens to weakenprotections othertypesof speech.In addition, for in an age ofmassmedia,the conceptof aidingand abetting couldpoextendto speech publishedby one personand thenutiltentially ized by anotherentirely unknownto the speaker. This further in has grownmore imdoctrine complication aidingand abetting and moreconfounding, recent in portant, years.30
27 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964) (requiring "actual an malice" standardfordefamation suitsbrought public officials). by 28 v. Brandenburg Ohio, 395 U.S. 444,447 (1969). 29 See Volokh, supra note 1, at 1191 the testas an "intent(describing Brandenburg plus-imminence-plus-likelihood test"). 3 See Rice v. Paladin Enters.,940 F. Supp. 836, 839 (D. Md. 1996), rev'd, 128 F.3d 233 (4th Cir. 1997), discussedinfraSectionIV.A.
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Stillmoreuncertainty besetscriminally instructional speechthat lacks an underlying While few cases have addressedthis offense. of lies withit. typeof speech,the future regulation the category advancescontinue make information to moreaccesTechnological sible to increasing numbersof people. At the same time,fears about terrorism increasethepressure regulatedissemination to of information. result a society which The is in potentially dangerous technicalknowledge(such as bombmaking is instructions) more at easily imparted-and that prospectis more frightening-than time.In suchan environment, temptation reguthe to anyprevious late instructional of speech is high,as is the importance regulating itproperly. The complications instructional surrounding criminally speech dictatethe structure therestof thisNote. Ratherthanjustifying of thetestin theabstract thenapplying to particular and it cases,Part of thisNote lays the groundwork a defenseof the test by for II betweenthe FirstAmendshowingthatthe current relationship mentand aidingand abetting doctrine misaligned. is
II. CIS TYPE I: AIDING ANDABETTING
Both state and federallaw routinely a criminalize certainsegment of criminally instructional that which "willfully" speech: "aids" or "abets" the commissionof an underlying offense.31 beSpeech thataids and abets a crimehas long been considered theboundaries First of themostfreAmendment yond protection, functions more as quent rationalebeingthatsuch communication actionthanas speech.This speech-act allowssuchspeech rationale to be exemptedfromFirstAmendment the reviewwithout strict that would accompany content-baseddiscrimination scrutiny than Justice againstpure speech. No less a speech protectionist Black made thisargument Giboneyv. EmpireStorage& Ice Co.: in "It rarelyhas been suggested thatthe constitutional freedom for and pressextends immunity speechor writing used as its to speech an integral statute. partof conductin violationof a valid criminal We rejectthecontention now."32In general, thefact"[t]hat'aiding
See,e.g.,18U.S.C. ? 2 (2000);ModelPenalCode ? 2.06(3)(a)(ii)(1962). v. in & 32Giboney Empire Storage Ice Co.,336U.S. 490,498 (1949).Admittedly,at In leastone case theSupreme v. Courtseemedto sayotherwise. Griswold Connecti31
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out of and abetting' an illegalact maybe carried through speechis no bar to itsillegality."33 this statute The federal accomplice liability supports understandaction.Under betweenspeech and criminal of the relationship ing an act to be done which causes 18 U.S.C. ? 2, "[W]hoeverwillfully if directly by performed him or anotherwould be an offense againstthe United States,is punishableas a principal."3'Annotationsto thestatute explainthattheterm"causes" not as intent punish a principal only to makesclearthelegislative and commits offense one who "aids,abets, an one who directly another commit to an induces procures" or commands, counsels, if but whocausesthedoingof an actwhich offense, also anyone 35 of wouldrender guilty an offense. him donebyhimdirectly of This definition "causes" clearlyencompassesspeech-based aided or assisted to contributions crime.If the defendant willfully of as in he another the commission an offense, is guilty an accomof his tooktheform speech. of plice,regardless whether assistance "The first does not provide a defenseto a criminal amendment out because the actoruses wordsto carry his illegal chargesimply purpose."36
under Connecticut's aidthe defendant convictions cut, Courtconsidered physicians' Conn.Gen. Stat. statute assisting for married ingand abetting couplesin violating 381 Ann.? 53-32 forbade use ofcontraception. U.S. 479(1965).Bethe (1958),which fore the statement "theState that this madetheexpansive invalidating statute, Court of contract spectrum the with of Amendment, not, may consistently thespirit theFirst defendant did available Id. knowledge." at 482.The Court notexplicitly that say phyof sicians' convictions voidon First were Amendment regardless thevalidity grounds with nor oftheunderlying to statute, did it attempt squareitsstatement theroutine in conanduncontroversial and criminalizationinstructional of speech aiding abetting from Griswold of This texts other thantheteaching contraceptive methods. language becauseit is clear seemsto have fallen theFirstAmendment perhaps by wayside, from restoftheopinion is statthattheCourt's the realobjection to theunderlying it it. and from On thewhole, is safeto ute,notto theaiding abetting arising charges to usualapproach aidrather thanGriswold, the saythat Giboney, represents Court's and inm abetting. Women Operation v. Nat'lOrg.for Rescue,37 F.3d646,656(D.C. Cir.1994). 34 18U.S.C. ? 2(a) (2000). Id. 35 v?2.
36
United Statesv. Barnett, 667 F.2d 835,842 (9th Cir. 1982).
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and Problem A. Incitement theButtorff courtshave of In a number aidingand abetting cases, however, in invokedtheFirstAmendment puzzling ways.A samplecase will of how the analysisworks;a briefexplication the inciteillustrate inwill show how it errs. UnitedStatesv. Buttorff mentdoctrine tax of for volved the prosecution defendants aidingand abetting states: fraud under26 U.S.C. ? 7206(2).7The statute counwho... willfully or assists or procures, aids in, Anyperson or or under, in consels,or advisesthepreparation presentation revenue the nection with matter laws, under, internal any arising or which frauduis ofa return, claim, other document, affidavit, shallbe guilty a of lentor is falseas to anymaterial matter..,. felony... .38 for in held The defendants Buttorff a seriesofmeetings employees of a John Deere plantin Dubuque, Iowa. At themeetings, they thata numberof employeessubsetax-evasion techniques taught The used on theirfederalincometax returns.39 defendants quently At these fraudulent were indictedforaidingand abetting filings. defensebut were raised a FirstAmendment trial,the defendants On appeal, the EighthCircuitaddressed nevertheless convicted."40 convicthe two issues.First, courtupheldthe aidingand abetting to that the evidence had been sufficient send the tions,finding amendment the Next,it asked "whether first questionto thejury.41 of theconvictions offreespeechand assembly prohibit protections thesedefendants"42 of The court'sdiscussion the constitutional questionbegan with in The courtcitedJustice Brandeis'sobservation some hesitation. of v. California thatthe freedom speechis not absolute,43 Whitney
228 F.3d 804, 37 572 F.2d 619, 622 (8th Cir. 1978); see also United Statesv. Raymond, 816 (7th Cir. 2000); United States v. Kelley,769 F.2d 215, 217 (4th Cir. 1985); United States v. Freeman,761 F.2d 549, 551 (9th Cir. 1985); United States v. Moss, 604 F.2d 569, 570 (8th Cir. 1979). 38 U.S.C. ? 7206(2)(2000). 26 572 F.2d at 622. 39 Buttorff, 40Id. 41 Id. at 623. 42 Id. 43 See id. v. 274 U.S. 357, 373 (1927) (Brandeis, J.,con(citingWhitney California, curring)).
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in Co. thenJudgeLearned Hand's statement Masses Publishing v. but thatwords"whichhave no purport to counseltheviolaPatten tionof law cannot... be a partof thatpublicopinionwhichis the in finalsource of government a democratic state."44 Finally,howthat "[m]orereever,the courtsettledon incitement. Observing the betweenspeechwhich cently, SupremeCourthas distinguished advocateslaw violationand speechwhichincitesimminent merely the lawlessactivity,"45 courtmade clearthatitwouldtesttheaiding it and abettingconvictions-which had alreadyupheld on their own terms-against the Brandenburg incitement standard.The the of courtdid not acknowledge oddity first determining on guilt and abetting and thenaskingwhether conviction aiding for aiding is and abetting constitutionally barred.Nor did it explainwhythe constitutional its incitement is the appropriate test standard; appliwas simply assumed.The courtconcludedthatthe defencability incited severalindividuals acto dants'"speechesand explanations thatviolatedfederallaw" and thuswere unprotected the by tivity the defendants' First Amendment.46 court therefore The upheld convictions. B. Incitement Criminal and Instruction Distinguished To anyonefamiliar with incitement the doctrine, EighthCircuit's has willseem rather the conclusion strange. Traditionally, doctrine not addressedthe typeof speech involvedin Buttorff is, in(that as structions evadingincometax). Incitement bestdescribed a on is of advocacy.For the mostpart,advocacyof ideas particular type and actions-even advocacyof law-breaking-isprotected speech The Supreme Court,however,has under the FirstAmendment. incitement one ofthefewtypesofspeechthatdo not as recognized In FirstAmendment v. merit protection.47 Brandenburg Ohio, the
Id. at 624 (quoting Masses Publ'g Co. v. Patten,244 F. 535, 540 (S.D.N.Y. 1917), rev'd,246 F. 24 (2d Cir. 1917)). 45 v. Id. (citingBrandenburg Ohio, 395 U.S. 444 (1969)).
44
46
47
395 U.S. at 447); obscenity(e.g., These include incitement (e.g., Brandenburg, v. Miller v. California,413 U.S. 15, 23 (1973)); and fighting words (e.g., Chaplinsky New Hampshire,315 U.S. 568, 571-72 (1942)). In addition,the Court has recognized level of protection, othertypesof speech thatmerita middling privatelibel including (e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-46 (1974)); true threat(e.g.,
Id.
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to SupremeCourt foundit unconstitutional "forbidor proscribe advocacyoftheuse offorceor oflaw violation," exceptin a special "wheresuch advocacyis directedto inciting set of circumstances, imminent to or producing lawlessactionand is likely inciteor proset of circumstances That duce such action.""48 special constitutes incitement. test Brandenburg providesthe current fordistinguishincitement: Speech is ing protectedadvocacy fromunprotected to unlessit is (1) intended inciteviolenceor lawlessness protected to and is (2) likely incitesuchaction(3) in theimminent future.49 instructional frominciteCriminally speech differs importantly As formulation ment. thethird prongoftheBrandenburg suggests, is Persuasivespeech will have its most incitement time-sensitive. in the has forcible term, after listener received impact theshort just to otherinencouragement act in a certain way. In the long term, to and fluences intervene, the decisionto act is likely be a product factors.The causal connectionbetween the of many different actionbecomes attenuated, and originalspeech and the listener's the likelihoodthat the speech produced the action diminishes. of Thus,thelongertheregulation such speechextendsbeyondthe the timeof its utterance, moreit comes to look like an unreasonon able restriction purespeech. to if By contrast, the speech intends and is likelyto spurimmeit createsa dangerofharmthatno intervening diateviolent action, This speechcan be will speechor influence have timeto intercept. of the in Brandeis regulated the interest averting harm.As Justice in Whitney, therebe timeto expose through discus"[I]f explained to sion the falsehoodand fallacies, avertthe evil by the processes to the ofeducation, remedy be appliedis morespeech.... Onlyan is Incitement unprotected becan emergency justify repression."50 form advocacy, a of that cause it is considered uniquely dangerous is to which likely cause harmin theimminent future.5 worksdifferently. Its instructional speech,however, Criminally to is function not to encouragelisteners commitcertain primary
Watts v. United States,394 U.S. 705, 707 (1969)); and commercialspeech (e.g., Va. v. State Bd. of Pharmacy Va. CitizensConsumerCouncil,425 U.S. 748,770 (1976)). 48 395 U.S. at 447.
49
v. 50Whitney California,
5i
See id.
274 U.S. 357,377 (1927) (Brandeis,J.,concurring). 395 See Brandenburg, U.S. at 447.
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actsbut to tellthemhow to do so. It suppliesthemnotwithintent but out a pre-existing or motivation withthe tools to carry intention. For this reason, the amount of time that passes between Likewise,the numberof intervenspeech and actionis irrelevant. the intent irrelevant, is because the ingforces influencing listener's place. Instead,the speech did not supplythat intentin the first information is as usefulsix months that lateras it speechprovided was whenthelistener heardit.52As Justice Stevensrecently noted, that "Whiletherequirement the consequencebe 'imminent' jusis does tifiedwithrespectto mere advocacy,the same justification adhere to some speech thatperforms teaching not necessarily a
function."53
of and Realistically, course,incitement instructional speechhave In more in commonthan thisanalysissuggests. practice, two the of speech oftenare intertwined, speakersbothpropound as types of the necessity certainacts and give advice on theirsuccessful For commission. instance, Yatesv. United Statesinvolved meetings of Communist at which"a smallgroupof members organizations were not only taughtthat violentrevolution was inevitable, but were also taughttechniquesforachieving thatend."54 Simithey in often larly, speakerssuchas thedefendants Buttorff givetechniand cal information also encouragetheirlisteners use thatinto formation breakthelaw." Speech in thesecircumstances be to can a muddleof advocacyand instruction, the speakermight and concriminal and tribute bothto listeners' intent to their means.
52 If, on theother in hand, listener, theintervening hearda different the time, recipe different forbombmaking to his recipes construct deday every and tooktipsfrom the backto theparticular structive would device, chainof causation tracing speaker be broken. One couldnotsaythat particular this words played rolein had a speaker's thecriminal had action, as one couldnotshowthatone piece of advocacy supjust withthe intent commit crimemonths to a later.If,however, the plied a listener usedto commit crime, instructions thesolemeansthelistener were the the speaker's chain causation of remain of would time intervened. intact, regardless howmuch v. 537U.S. 993,995 (2002) (Stevens, opinion denial J., regarding 3Stewart McCoy, ofcertiorari). 354 States, U.S. 298,331-32(1957). 54Yatesv. United 623(8thCir.1978)("[E]ach [defendant], speaking largegroups to by 55572F.2d619, of persons, othersto evade income soughtto advancehis ideas and encourage v. 761 States Freeman, F.2d549,551 (9thCir.1985)("Freetaxes.");see also United of violations thetaxlawsat seminars conof counseled he man,a taxprotestor sorts, ducted.He urgedthe improper of how filing returns, demonstrating to report wages... .").
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because of thespecialnatureofFirstAmendment Furthermore, review,Brandenburg complicatesthe prosecutionof aiding and in cases. At thetriallevel,defendants thesecases typically abetting raise a First Amendmentdefense to the aiding and abetting thattheywere,forexample,merelyadvocating claiming charges, rather thanwillfully helpingindividuals changesto the tax system tax At commit fraud.56 the appellatelevel,the courtmustmake a that reviewoftherecordof anyfindings implicate fullindependent to This specialrequirement theFirstAmendment.57 compelscourts of considerthe character the defendants' speech at everylevel of litigation. determine that the of Nevertheless, contours accomplice liability infect aidingand abetting the "Aidshouldnot incitement inquiry. ing and abetting"as a formof accomplice liabilityis usually The generalfederalaiding and broader than its name suggests. 18 U.S.C. ? 2, encompassesany speech or action statute, abetting where "causes" includes"aids, that "causes" a criminaloffense, induces or procures abets, counsels,commands, ...."" Similarly, the of law thatgoverns aidingand abetting tax fraud, the specific who "[w]illfully or assists aids 26 U.S.C. ? 7206(2),punishes anyone or or counsels, advisesthepreparation presentation in,or procures, revenuelaws,of a return, under... theinternal affidavit, claim,or or whichis fraudulent is falseas to any material otherdocument, criminalize Both of thesestatutes matter."59 speechthat"counsels" in instructs it.Thus,in Buttorff, law violation, well as thatwhich as to of contributed the filing if the defendants' speech intentionally reof tax were guilty aidingand abetting, fraudulent returns, they theirinstructional speech was combinedwith gardlessof whether "advocacy." "Advocacy" itselfcould be criminalunder Section or 7206(2) as "counseling" "advising." doctrine? does thisnotrunafouloftheincitement Because, Why criminal attachesto "coununderaidingand abetting law, liability seling"or otheradvocacyonlywhenit (1) is done withthe intento tion of contributing law violationand (2) actuallydoes so. If
56 See, e.g., United States v. Raymond,228 F.3d 804, 808 n.1 (7th Cir. 2000); Free572 man,761 F.2d at 551; Buttorff, F.2d at 622. 57See Bose Corp. v. ConsumersUnion,466 U.S. 485, 505-06 (1984). 5818 U.S.C. ? 2 (2000). 5926 U.S.C. ? 7206(2) (2000).
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the thereis no underlying crime, speech mayqualifyas protected But once there is an underlying advocacy under Brandenburg. contributed thatcrime to even "advocacy"thatintentionally crime, can no longersalvagethespeech. is unprotected. Brandenburg Table 1: SpeechClassified ItsMensRea by andItsRelation Crime to Mens Rea
No intent
to Not likely incite Advocacy
Relation Crime to
Type Speech of
Status
Protected
Nointent Intent Intent Intent
to Likely incite to Not likely incite to Likely incite caused Already
Advocacy Advocacy Incitement & Aiding Abetting
Protected Protected Unprotected Unprotected
mere advocacyeitherdoes not intendto foster To summarize, is not likelyto do so, or both. In each case, it is lawless action, bothintends fosto Incitement, contrast, by protected. completely terlawlessactionand is likelyto do so. It is unprotected. Finally, to lawlessactionand speechthataids and abetsbothintends foster by actuallydoes so. It, too, is unprotected the FirstAmendment law. This means that,as and faces penaltiesunder the criminal a soon as a courthas established defendant's guiltforaidingand the defenthereis no longerany question of whether abetting, is protected theFirstAmendment. dant'sspeech Regardlessof by or it whether was instructional, motivational, both,Brandenburg has no place in theanalysis. Where Brandenburg mighthave a place-and where courts whether defendants the shouldbe verycareful-is in determining for do requirements aidingand abetactually meetthe culpability to theirspeech as oftenwillattempt characterize ting.Defendants mere advocacy,and if theycan raise a reasonable doubt about thentheyshouldnotbe convicted.'Such a conclusion their intent
in of articulated notion reversing this twelve counts aiding Kennedy 6 Then-Judge wherea FirstAmendment had notbeen allowedby the trial defense and abetting of there someevidence... that purpose thespeaker thetenis the or judge:"Where to remote from commission the are of dency hiswords directed ideasorconsequences
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not because the FirstAmendment would be warranted, however, but because the government has protectsaiding and abetting, of the failedto establish elements the crime.An opinionlike Butwhichfirst the affirms defendants' guiltforaidingand abettorff, whether such activity protected the is by tingand thenconsiders FirstAmendment,61 therefore incoherent.62 is Unintended C. Incitement's Consequences of test To speechprotectionists, application the incitement here even ifincorrect. cases whereinstructions In seem desirable, might or are givenat seminars in publications longbeforethecommission of a crime,the offending speech should always fail the "immiThe and nence" prongof Brandenburg thusbe protected.63 Ninth Circuitreached thisconclusionin dicta in UnitedStatesv. Dahlwere foundto lack the requistrom." In thatcase, the defendants but to siteintent aid in tax fraud, thecourtwenton to remark that, thatthe adin therecordindicates even ifintent existed, "Nothing imminent lawcontemplated vocacypracticed thesedefendants by can justify less action. Not even national security criminalizing within thisnarrowcategory; concern unlessit fits certainly speech no withprotecting public fisc,howeverlaudable, can justify the
is for basedon theFirst Amendment a legitimate matter ofthecriminal a defense act, where 761 the thejury's consideration." counts, Freeman, F.2d at 551.On twoother tax Kenin others filling fraudulent forms, out defendants actually had assisted Judge Id. defense beenrightly had excluded. at 552. found a First that Amendment nedy Thisdiscussion focused casesthat on has conflate incitement aidand misguidedly of mistake. United the See but ingandabetting, a handful caseshaveavoided Buttorff a under 26 v. 899 States Rowlee, F.2d 1275,1280(2d Cir.1990)(upholding conviction the U.S.C. ? 7206(2)whilecriticizing trialcourt instructing juryto consider the for issue" of First and bothelements the crimeand the "duplicative unnecessary of v. 896 Amendment UnitedStates Mendelsohn, F.2d 1183(9thCir.1990) protection); for and convictions aidingand of the (rejecting invocation Brandenburg upholding of UnitedStatesv. Barinterstate paraphernalia); abetting transportationwagering the as 667 nett, F.2d 835,842 (9th Cir. 1982) (rejecting "specioussyllogism" First with and for mailAmendment defense a defendant of charged aiding abetting selling of on order instructions themanufactureillegal drugs). 63 See id.at 622-23. 1428(9thCir.1983). 64713F.2d1423,
62
61
See Buttorff, F.2d at 623-24. 572
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courtthussuggested thatitwould have reThe more.."65 Dahlstrom on fused to convictthe defendants aiding and abettingif their Whilethisanalystandard. speechhad not also mettheincitement and thiscould be it sis is flawed, is also highly speech protective, in seen as a good thing and ofitself. of the But Dahlstrom represents exceptionalapplication incitecourts In mentdoctrine. mostcases, afterinvoking Brandenburg, Ratherthandeal with do not let it standin the way of conviction. statusof criminally instructional theunsettled speech,manycourts as and find thatthespeechin questionactually qualifies incitement the FirstAmendment. without be prosecuted Thus, violating may "incitedseveralindithe Buttorff courtfoundthatthe defendants that violated federallaw," even thoughtheir viduals to activity lawless activity renot incitethe typeof imminent speech "[did] to cases."66 ferred in criminal syndicalism have reachedthe same conFive otherappellatecourtdecisions In Circuit defenclusion.67 one case, the Seventh justified enjoining materials noting thatthe intax-related dantsfrom by publishing was narrowly tailoredso that"it clearlyapplie[d]onlyto junction in thatinciteothersto violatethe tax laws."68Similarly, activities UnitedStatesv. Freeman,then-Judge Kennedyfoundthat there the had "incited" was a questionof factas to whether defendant While therewas evidencethatthe defenviolationsof tax law.69 dant's speech was mere advocacy,"[t]herewas [also] substantial evidenceof Freeman'suse of wordsof incitement quite proximate becomes to the crimeof filing false returns."70 Here "imminent" in orderto createthepossibility the speech that "quiteproximate" the test.Such modifications in questionmight satisfy Brandenburg undermine traditional its of theincitement however, doctrine, pur65 Id.; see also id. ("Even ifthedefendants knewthata taxpayer actually who perwouldbe acting the amendment the formed actionstheyadvocated illegally, first a before criminal a couldbe enforced."). would inquiry penalty require further 66 572 Buttorff, F.2dat624. 67See United v. States Raymond, F.3d804,815 (7thCir.2000);United States v. 228 v. 98 769 Fleschner, F.3d 155,158-59(4thCir.1996);UnitedStates Kelley, F.2d215, 761 217 (4thCir.1985);UnitedStatesv. Freeman, F.2d 549,551-52(9thCir.1985); v. States Moss,604F.2d569,571-72(8thCir.1979). United 68Raymond, F.3dat815(emphasis 228 added). 69 761F.2dat 551-52. 70 Id. at 552.
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pose. As JusticeBrandeis said, "[i]f there be time to expose the to discussion falsehoodand fallacies, avertthe evil by through the processes of education,the remedyto be applied is more A can speech.... Onlyan emergency justify repression."71scenario in whichtherewouldbe no timeto avertthe "emergency" "imof is to tax minent" code violations difficult imagine. courts Thus, in order to finddefendants guiltyof incitement, eitherby ignoring immithe mustdistort the Brandenburg test, it The nence provisionor by attenuating into meaninglessness. is the import revised dangerof such distortion clear:Courtsmight cases. If,in distinguishing between testback intotrueBrandenburg and incitement, courtswere able to dismiss the politicaladvocacy a greatdeal ofspeechthatis currently imminence factor, protected sucha regime wouldbe subjectto punishment. can imagine One by how Hess v. Indiana,7 or Brandenburg itself, might considering have come out without imminence an component. Alternatively, one can imaginesuch a regimesimply readingUnited Statesv. by affirmed aiding an Kelley.In thistax fraudcase, theFourthCircuit and abetting thatthe FirstAmendment conviction, claiming prolaws" but not tects "critical, of but abstract, discussions existing of violations current to "speech whichurgesthe listeners commit law."73Encouragements lawless action are precisely to what the does protect, longas they so within cerstandard Brandenburg stay The entirepointis thateven speech tain permissible parameters. will thatadvocateslawlessness notbe regulated thebasis ofconon extreme undercertain conditions. tent, except of doctrine These misinterpretationsFirstAmendment as ramify become precedentfor new cases. In one case, a courtadthey FirstAmendment claimsimply quoting at dresseda defendant's by the fromButtorff's incitement In another, court length analysis.74 verbatim Kelleycourt'sconstrual Brandenburg.71 the of reproduced of not Such flawedapplications Brandenburg onlyfailto address
71Whitneyv. California,274 U.S. 357, 377 (Brandeis, J., concurring)(emphasis added). 72 414 U.S. 105, 108-09 statement "'We'll (1973) (holdingthatan antiwar protestor's streetlater" (or "We'll take the fucking streetagain") was protected take the fucking standard). speech underBrandenburg 73 769 F.2d 215, 217 (4th Cir. 1985). 74 See United States v. Moss, 604 F.2d 569,571 (8th Cir. 1979). 98 75See United Statesv. Fleschner, F.3d 155, 158 (4th Cir. 1996).
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instructional the unique characterof criminally speech but also into pose the dangerofbeingre-imported theclassicadvocacysetkindofunpopular and leveraged againstany ting speech.
III. THE CIS TEST
the The appellatedecisionscitedin PartII illustrate logicof apand abetting doctrine cases of speechto traditional aiding plying the based aiding and abetting. They also demonstrate confusion are and thatcan ariseifsuchprinciples notappliedcarefully consisbut Each case shouldinvolvea detailedfactual tently. inquiry, the between the First Amendmentand the conceptualrelationship law need not be complex.When a speaker intendshis criminal in to and of wordsto contribute a crime, they factdo so, he is guilty and abetting. aiding If legislatures decide to regulate instructional criminally speech, the by they can avoid endangering First Amendment following in closelythe model of aiding and abetting. Similarly, enforcing freespeechrights pursuing wouldbestprotect suchlaws,courts by a demandingfactual inquiry, patternedafterthe standardemcases. The three-part test, CIS articuployedin aidingand abetting lated in Section I.C. above, providespracticalguidanceforboth and courtsin dealingwiththe problemsposed by the legislatures of instructional speech.For the sake of clarity category criminally thatfollows, in the discussion the restating proposedtestmay be helpful: a offense beencommitted,speaker has with a I. Wherea criminal and direct to theprincipal direct of his relationship knowledge plansshouldbe heldliableforaidingand abetting upona showthathisinstructions in thecommission of assist ingof hisintent offense. thecriminal a with offense been committed,speaker has II. Wherea criminal of no direct to and knowledge relationship theprincipal no direct of hisplansshouldonlybe heldliableupona showing (1) hisinof that instructions in thecommission a criminal his oftent assist fenseand (2) a clearconnection between typeofoffense the he intended foster thetype to and committed theprincipal. by
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offense been committed, speaker has a III. Whereno criminal shouldonlybe held liable upon a criminal instructions giving of of to showing (1) his intent assistin thecommission a crime a high his speechmight facilitate crime a likelihood that and (2) he ofthetype intended. shouldbe clear from The reasonsforthe test'sfocuson intent doctrine. adIn of theforegoing discussion theaidingand abetting the dition, testrequiresan actual crimein PartsI and II and the at"highlikelihood"of a crimein Part III. These requirements dedoctrine's aidingand abetting temptto extendthe traditional into mandofan underlying offense moreattenuated circumstances, or wherethespeakerdoes notknowtheprincipal wherean offense the likelihoodprongin Part III is not committed. Furthermore, If servesto protect speech in cases of impossibility. someonewere that instructions had no capability to post inaccurate bombmaking would be protected, because of hurting anyone,those instructions about the violentcrime would have no likelihoodof bringing they The thatthe speakerintended facilitate.76 likelihoodprongalso to function makingconviction of more diffiservesthe prophylactic has not occurred.Unless the cult in instanceswhere an offense wordsposed a highprobability statecan showthatthe defendant's This vaguenesscould have a chillof harm, theywillbe protected. on would be less than if effect some speech, but that effect ing at all. there wereno likelihood requirement the to The test,in essence,attempts preserve two key elements on of aidingand abetting: actualintent thepartof the speaker (1) as It and (2) as close a relationship possibleto an actualcrime. also fromanother context in its focuson inlook familiar since, might the it the test tentand likelihood, resembles Brandenburg without
76 Some commentators that of in much thebombmaking information available say is "Does theAnarchist Cookbook conbooksoronline faulty. Ken Shirriff, See really at tainerrors?" http://www.righto.com/anarchy/index.html Nov.2,2005) (lastaccessed andconcluding "there that are a instruction manual (analyzing passageoftheclassic in A of four obvious errors a totally useless and recipe one short paragraph"). number on websites have grown thatreview accuracy information other the of websites; up before recommend sources to checking attemptingconstruct device. any many multiple See, e.g.,http://www.totse.com/en/badideas/ka_fucking_boom/partialreviewol70773 html.
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imminence element.This is in some waysa positivesign:The imwiththe incitement minenceprongwas the onlyreal problem test, to and it is reassuring notethattheSupremeCourthas alreadyapproved a First Amendmenttest with intentand likelihoodreIt more conceptually accurate-and perquirements. is, however, the protective-tounderstand testas an haps also constitutionally thana modification inof aidingand abetting rather of outgrowth of citement. and abetting a form criminally is instructional Aiding difdoctrine developedforan entirely speech,whiletheincitement the has ferent kindof expression. Furthermore, incitement analysis a habitofturning theimminence on and addressing intent question The and likelihood analysis cursorily. aidingand abetting attempts reasonable-doubt standardon both. Conto impose a demanding the test than ceptualizing testas an aiding-and-abetting-type rather an incitement-type helpsensurethatit performs function its of test the truestline possible between"speech" and "speechdrawing act." This is notto say thattheCIS testdrawsa perfect easy line. and thatsomeonearrested detonating bombin front a for a of Imagine station to directs authorities thewebsitefrom whichhe obpolice tainedtherecipeforthebomb.The websitecontains onlythe recURL. Is thepersonwho posted unoffending ipe and has a neutral, of the recipeguilty aidingand abetting? thatthe Imagine,instead, still appears withoutcomment,but at a website called recipe Is liable?Whatifthe "www.copkiller.com." thisspeakercriminally siteis called "www.forkillingcops.com?" iftherecipeappears What withthe comment, "Use thisto kill cops!"? Alternatively, whatif the instructions on an anti-abortion websitebut were appeared used to bomb a police station? Whatiftheywere used by an individual to kill his own family? Finally,imaginethateach of these websitesexistsbut has not yetbeen used by anyonein makinga bomb. Whichwebsitesshould be protected?Can speakers ever whentheyare not involvedin the planintent possess meaningful of a specific criminal venture and have no knowledgeof the ning in If contexts whichothersmay choose to use theirinformation? in we are speaking terms "stakein theventure," of how do we determine sucha thing whenthespeakerdoes not knowhis listeners and has no idea abouttheir venture? specific plans?Stake in what
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These are difficult questions,and no testcan make themeasy. The CIS testassumesthat,whilethe speech in manyof thesescenot nariosis protected, all of it shouldbe. To throw our hands up and declareit all protected because the line is hardto drawwould be no moreequitablethandeclaring all criminal. it Under the CIS In will test, by liability be governed the speaker'sintent. situations the will depend where a crimeis committed, speaker's liability he to to whether intended contribute a crimeof thattype.In upon will situations whereno crimehas been committed, liability depend the his upon whether speakercommunicated messageforthepurto pose of contributing someone else's crime.If the speaker ina he tendedto facilitate crime, maybe criminally liable. If he did evidencethathe did,thenhe is not. not,or ifthereis notsufficient as And obviously, in everyarea of the criminal law, the defendant of is innocent untilthe elements his crimeare provenbeyondreasonabledoubt. Some willobjectto the CIS testas overprotective, othersas unthatthetestis too vague or based Some willsuggest derprotective. on the wrongcriteria. Part V addressesthese objections, first but some ofthediffiPartIV appliesthetestto cases thatdemonstrate instructional culties posed bycriminally speech. IV. THE FUTURE OF CRIMINALLY INSTRUCTIONAL SPEECH Part II of thisNote demonstrated problemsof prosecuting the and abetting and clarified the standardthat speech-basedaiding shouldgovernsuch cases. That standard addressedin Part I of is the CIS test.Parts II and III of the test are designedto handle or situations wherethe connections betweenspeakerand listener and incident more attenuated, are even non-existent. The speaker fewcases treating thesescenarios with illustrate difficulties exthe the instructional isting speech.Applying approachesto criminally could be simCIS testto themshowshowjudicialdecisionmaking the plifiedand improved analythough use of aidingand abetting sis. A. CIS TypeII: Rice v. PaladinEnterprises As mentioned above, PartII of the CIS testdeals withso-called and abetting" situations wherethereis nota close relation"aiding
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shipbetweena speakerand his audience.This typeof speech can take many forms,rangingfrommainstream news reportsand blockbuster moviesto online recipesfor explosives.Perhaps the best exampleof such speech-and the inadequaciesof the current in Inc.77 approachto it-is presented Rice v. Paladin Enterprises, death suit againstpublishing Paladin was a wrongful company Paladin Enterprises its President, and Peter Lund, fortwo books, Hit Man: A TechnicalManual for Independent Contractors ("Hit Vol. H ("SilencMan") and How To Make a Disposable Silencer, The were survivors threeindividuals of murdered ers").78 plaintiffs killer JamesPerry, contract who had used thetwobooks to plan by in the killings and followedtheirinstructions painstaking detail.79 the Accordingto the plaintiffs, publishing two books,Paladin by had aided and abettedin the murders.8o Paladin moved forsumthatit was protected theFirstAmendmary judgment, arguing by
ment.81 Paladinwas decidedon a motion summary for Both judgment.
in itsmens First, relation Perry rea. to Paladin himself, stipulated

that had"nospecific it a to that knowledge" Perry planned commit crime.83 Paladinstipulated in publishing, Second, that, marketing, and distributing Man andSilencers, knewandintended Hit it that
to thecase's disposition disastrous Paladin.Paladinstipuand to latedthat after to commit murders, the Hit ordered agreeing Perry in Man andSilencers Paladin's from mail-order and catalogue, that outthemurders, followed he ofthebooks'instruccarrying many tions.82 Paladinmade certain Furthermore, regarding stipulations
to crucial facts, parties stipulated certain which ultimately proved
940 F. Supp. 836 (D. Md. 1996), rev'd,128 F.3d 233 (4th Cir. 1997). As partof thiscase's settlement Paladin agreed to cease publicationof agreement, bothbooks. The textof Hit Man can be viewed at http://ftp.die.net/mirror/hitman/. 79 See 940 F. withLawrence Horn to murSupp. at 838-39. JamesPerrycontracted der Horn's ex-wifeand disabled son, so thatHorn would obtain the two milliondollars his son had received in a medical malpracticesettlement. eightPerrystrangled MildredHorn, and his nurse,JaniceSaunyear-oldTrevorHorn and shot his mother, ders.See Paladin, 128 F.3d at 239. 80Paladin, 940 F. Supp. at 838.
77 78
81Id.
82
83Id.
Id. at 839.
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wouldbe used bycriminals commit thepublications to murder and intended attract to thatitsmarketing suchindividuals.'4 strategy Paladin made suchincriminating because it believed stipulations that the First Amendmentofferedfull protectionagainst all Paladin arguedthat,unlessHit Man and Silencer into fell charges. one of the few categoriesof constitutionally unprotected speech, under the FirstAmendment, the books were fully reprotected of theirintentor theirconnection a criminal to gardless event.85 to This rationale bothits whyPaladinwas willing stipulate explains intent and the books' materialassistancein Perry's own criminal the crime.AdoptingPaladin's reasoning,86 district courtidentified of fivecategories constitutionally unprotected speech and summaof the applicability four:obscenity, liwords, rilyrejected fighting The courtfoundthat"the onlycatebel, and commercial speech.87 of unprotected speech under which Hit Man could gory to be lawless activity conceivably placed is incitement imminent, and that, thecourtwould "conduct underBrandenburg" therefore, its analysis of whetherthe book [was] protectedby the First Amendment undertheBrandenburg standard.""88 This approach,urged and anticipated Paladin's motion, led by courtto applythe threeprongsofBrandenburg to the district and that test: find, unsurprisingly, HitMan failedthe"imminence" the musthave intended immiUnderBrandenburg, Defendants nentlawlessaction.In otherwords, Defendants musthave intendedthat JamesPerrywould go out and murder Mildred Trevor and Janice Saunders Thatdid Horn, Horn, immediately. have stipulated the nothappenin thiscase sincetheparties to committed theseatrocious a factthatJames murders year Perry in the after receiving books.... [N]othing HitMan and Silencers as to couldbe characterized a command immediately murder the three victims.89
84
86 See id. at 840-41 ("The FirstAmendment bars the imposition civil liability of on and narrowlylimited Paladin unless Hit Man falls withinone of the well-defined classes of speech thatare unprotected theFirstAmendment."). by 87Id. at 841-49. 88Id. at 841. 89 Id. at 847 (internal citations omitted).
85
Id. at840. Id. at838.
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Unlike manyothercourtsthathave applied the incitement test to criminally courtin Paladin at instructional speech,the district least appliedit correctly. UnderBrandenburg, book published a in 1983and purchased and read in 1992can in no waybe said to have in "incited"a murder 1993. The courtaccordingly defengranted dant'smotion summary for judgment.90 As we have seen, however, incitement the analysishas proved to manipulation cases involving in instrucsusceptible criminally tionalspeech.On appeal, JudgeMichael Luttigof theFourthCircuit,speakingfora unanimous panel, reversedand remandedthe case fortrial.91 devotedmostofhis opinionto arguing JudgeLuttig thatthe Paladin books are "tantamount legitimately to proscribable nonexpressive conduct"and thus "may [themselves] lebe This argument a of gitimately proscribed."92 suggests rejection the incitement and an endorsement the speech-actparaof analysis used to justify criminalization aidingand of the digmtraditionally Yet he abetting. whenJudgeLuttigaddressedincitement directly, foundthatHit Man squarelyqualifiedas such. JudgeLuttigrecourt'sportrayal Hit Man as protected of advojected the district he wrote, "this book constitutes archetypal the cacy.Instead, example of speechwhich, because it methodically comprehensively and precriminal conduct... finds paresand steelsits audienceto specific no preserve theFirstAmendment."93 in How was Judge in of Luttigable to make thisargument light the imminence Unlike the courtsin the tax fraudcases, requirement? he did not insistthatthe speech in questionactuallyqualifiedas imminent underBrandenburg.94 Rather,he criticized Brandenburg and substituted anotherformof the incitement test.9" the pasIn
90 at 849. Id. Wilkins Williams and both Rice v. Paladin 91 joinedJudge Judges opinion. Luttig's
128 Enters., F.3d233(4thCir.1997). 92 See id. at 243. 93Id. at 256. 94 See, v. States Raymond, F.3d 804,815-16(7thCir.2000);United 228 e.g.,United Statesv. Fleschner, F.3d 155,158-59(4thCir.1996);UnitedStatesv. Kelley, 98 769 F.2d215,217(4thCir.1985);United States Freeman, F.2d549,551-52(9thCir. v. 761 v. States Moss,604F.2d569,571 (8thCir.1979). 1985);United 9 this from also digresses doctrinal to In partoftheopinion, Judge Luttig analysis all of from each,forfive go through ninechapters HitMan,quoting liberally pages, 128F.3dat 257-62, after with almost four already having openedtheopinion pagesof
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invoked SupremeCourt's the sage above,Judge Luttig deliberately decisionin Noto v. United a case States,96 pre-Brandenburg thatdifferentiated between "the mere abstractteachingof Communist and "preparing groupforviolent a it actionand steeling to theory" such action."97That passage represents potentialconflation of a a instructional criminally speech(speech "preparing groupforviolent action") and unprotected incitement (speech "steelingit to such action").JudgeLuttig read theNoto formulation "approvas as thatconflation that and, consequently, demanding ing" exactly instructional criminally speechbe unprotected.98 JudgeLuttigthen the did arguedthatthe laterBrandenburg ruling not modify Noto Court's alleged denial of protection for criminally instructional speech: the as itself [T]o understand Court[inBrandenburg] addressing to to speechother thanadvocacy wouldbe to ascribe it an intent to revolutionize criminal in a severalparagraph cuthe law, per riam opinion,by subjecting to the demandsof prosecutions "imminence"and "likelihood" requirements Brandenburg's whenever predicate the conduct takes,in wholeor in part,the form speech.99 of This criticism the inappositenessof Brandenburg of largely in tracksthe earlierdiscussion SectionII.B. But JudgeLuttigrebootsponded to this problemmuch differently, essentially by Noto into an entireSupremeCourt doctrine crimion strapping speech. He found that Hit Man failed to nally instructional in constitute "mereadvocacy,"rootedthisfinding SupremeCourt and declaredthespeechunprotected. precedent (Noto),
to direct Id. bequotation. at 235-39.It is difficult escapethesensethat Judge Luttig lieves expostulation this somehow makes casefor the incitement. 96 367U.S. 290(1961). 97 Id. at 297-98. in Smollaputforth Notoargument oraland the Professor Rodney its in written and Smolla, argument, he emphasizes importance hisbook.See Rodney Deliberate Intent (1999) ("Thiswas ourticket. neededto emphasize Hit 131 We that Man was not abstract but and see teaching was aboutpreparation steeling."); also BriefforRespondents 3, PaladinEnters. Rice,523 U.S. 1074(1998) (No. 97v. at
1325).
128F.3dat263-64. 98Paladin, 99 at 265. Id.
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had strong incentive follow to Practically speaking, JudgeLuttig sucha course.In theabsenceof a clearruleaboutwhattestapplies to suchspeech,he quitesensibly hedgedon theBrandenburg question. Even if he could not in good consciencefindthatHit Man incitement undertheBrandenburg he constituted standard, at least if foundthatit was not"mereadvocacy"and made a case forwhy, is the issue, Noto should controlratherthan Brandenadvocacy burg.One stillhas the sense thatJudgeLuttigwould have been more comfortable incitement if were leftout altogether, he but all his from sides. protected judgment Under the CIS test,neither trialcourtnorthe appeals court the was quiteright. Paladin and thedistrict courtwerecorrect thatthe Hit FirstAmendment fully protects Man, but not underBrandenThe questions underPartII ofthe CIS testshouldhave been burg. offense therewas), and (1) is therean underlying (and obviously to was thisspeechintended assistin suchan offense? Fromthis (2) Paladin'sstipulations werea disaster. stipulated It both standpoint, thatits publications assistedin committing underlying the offense and thatit intended themto contribute suchoffenses. the for If to CIS testwere the clear standard, Paladin stillwould have claimed but absoluteprotection neverwould have made such stipulations. If Paladin had indeedintended assistreadersin murdering to peothenthe company shouldof coursehave been held liable.But ple, it is highly thatany commercial house would unlikely publishing make such an intentpart of its businessplan, and it is equally thattheplaintiffs could have successfully suchan unlikely imputed intent Paladin,evenunderthelooserstandard civilliability."? to of Of course,thecase couldnotproceedin thisway,because courts must apply existing precedent.The lower courtrecognizedthis, thata "federalcourtsitting diversity in cannotcreate emphasizing new causes of action"and thuscannot"createanother of category
to It with lastprediction. this He 00 is important notethatJudge Luttig disagreed that"[w]holly a insisted Paladin'sstipulations.... reasonable apartfrom jurycould find Paladinpossessed intent the that under law, required Maryland as wellas theintent under heightened Amendment First standard." at 253.Butthere Id. required any is a difference between whata jurycouldfind whata jury likely find. and is to Judge diminished theentertainment of thebook and themultiple both value cateLuttig that of and progoricaldisclaimers warnedof the illegality the actionsdescribed that claimed publisher's the intention thebookbe used "ForInformational Purposes 940 Only!"Paladin, F. Supp.at 838-39.
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This unprotected speech,i.e.,speechthataids and abetsmurder."10' thatthe lower court,like the appeals court,was uncomsuggests fortablewiththe incitement analysisand yet feltbound by Suto Courtprecedent employit. The establishment a clear of preme testforcriminally instructional whatstanspeechwouldtellcourts dard to use, therebymakingelaborate rationalizations unnecesA clear rule would also help litigants. The establishment of sary. the CIS test,and the concomitant from Brandendisentanglement and more doctrinally satisburg,wouldresultin morepredictable outcomes.Brandenburg would be preservedforits original fying like purpose;defendants Paladin wouldknowat the outsethow to defendthemselves; inquiries and wouldreliably turnon the culpaof rather thanon a givencourt'smanipulation bility thedefendant, The Hit Man case illustrates of an incitement standard. bothwhya is clear standard needed and whythe CIS testshouldbe thatstandard. B. CIS TypeIII: Instructional No Speechwith Underlying Offense Aiding and abettingrepresentsonly that part of criminally instructional tied actionand speechmostproximately to a criminal thusmosteasilypunishable. The more difficult questionis how to instructional that is not linked to any treat criminally speech knowncriminal action.Shouldsuch"purespeech"be regulated, or is it constitutionally The SupremeCourthas neverrecprotected? and thushas never speechas a category ognizedsuchinstructional itsconstitutionality. might This thatsuch pronounced upon suggest that The sparsecommentary does exist,howspeech is protected. thatvariousJustices have at timesassumedthatit ever,suggests In lacksprotection. Near v. Minnesota, instance, Courttook for the forgranted thattheFirstAmendment notextendto "thepublidid or cationofthesailingdates oftransports thenumber and location of troops."'02 Justice And in Dennis v. United States, Douglas con-
U.S. 697, 716 (1931). The example is technically one of crime-facilitating instructional. is more like the publicationof a witspeech that is not criminally (It on ness's name thandirections how to killhimor her.) It is stilluseful, however,as an indication a generalattitude of towardall crime-facilitating speech.
102283
101Paladin, 940 F. Supp. at 842.
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instructional in demnedcriminally terms his speechin no uncertain dissent: werea case where Ifthis thosewhoclaimed under the protection First wereteaching techniques sabotage, the Amendment of the of assassination the President, filching documents of the from of the the and warfare, publicfiles, planting bombs, artof street The freedom speakis notabthelike,I wouldhaveno doubts. to of of and otherseditious solute;the teaching methods terror conduct shouldbe beyond pale alongwith the and obscenity immorality.103
in the Similarly, Yates v. UnitedStates,'04 Court upheld convictions of the leaders of Communist meetingsat which "a small werenotonlytaught thatviolent revolution was groupofmembers but for that inevitable, theywere also taught techniques achieving Finally,in a much more recentcase, discussedbelow, the Sudecisionreversing premeCourtdeclinedreviewof a NinthCircuit a conviction under an Arizona law that prohibits advisinggang on members gangpolicyand practices.' Justice Stevensappended an individual statement the denial of certiorari, to sayingthatthe and Courthad "not yet considered whether, if so to whatextent, the First Amendment protectssuch instructional speech."''7He also statedthat "[1]ongrange planningof criminal enterpriseswhichmayincludeoral advice,training and perhapsthe exercises, of materials-involves speech thatshouldnot preparation written be glibly characterized mere'advocacy'and certainly create as may publicdanger."'08 significant In addition, whilethe Courthas withheld on judgment the conof instructional stitutionality criminally speech,Congressand state have passed laws criminalizing Cases involving it. these legislatures
end."'05
341 581(1951)(Douglas, dissenting). J., 103 U.S. 494, Scalesv. UnitedStates, U.S. 203,233 (1961) (describing factual 367 the circumof stances Yates). 537 McCoyv. Stewart, U.S. 993(2002). 106 107 Id. at 995. Id. 08 at 995.
105 104
354 U.S. 298 (1957).
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statutes to providean opportunity applytheCIS testand to witness thedangers otherapproaches criminally of to instructional speech. 1. Facilitating "CivilDisorders"Under FederalLaw Under 18 U.S.C. ? 231(a)(1), it is forbidden teach or demonto or strate"to any otherperson... the use, application, makingof firearm explosiveor incendiary or or any device.., knowing havknow or intending thatthe same will be unlawfully ing reason to for This of, employed use in, or in furtherance a civildisorder."109 statute thusoutlawsType III criminal withno instruction, speech crime. connection a committed to The statutehas at least two facialproblems.First,it is vague at about the "civildisorder" issue. It is unclearwhether defenthe dantmustforesee(or have reasonto foresee)his contribution a to civil disorder,a particulartype of civil disorder,or particular mensreaSecond,therequired merely kindof civildisorder. any "knowingor having reason to know or intending"-is fatally a flawed. Whereas18 U.S.C. ? 2 requires mensrea ofintent find to of a speakerguilty contributing a committed to 18 U.S.C. crime,"o ? 231(a)(1) would punish knowing,reckless,or even negligent evenwhensuchteachings resulted had aboutfirearms, in teachings the no criminal conduct.Putting two problemstogether revealsa instruction statutethatwould criminalize givenwithrecklessness or negligence towarditspotential furtherance some unspecified, of 18 event.As written, U.S.C. ? 231(a)(1) failsthe CIS hypothetical an test and constitutes impermissibly overbroad regulationof speech. The lowercourtsthathave addressedthisstatute have evinced with some discomfort itsmensrea requirement. NationalMobiIn to lizationCommittee End theWarin VietNam v. Foran,themembers of the Chicago Seven challenged18 U.S.C. ? 231(a)(1) on as FirstAmendment overbroad, grounds unconstitutionally pointmensrea requirement would criminalize out thatthe statute's ing such as the teaching self-defense marof and activities, legitimate The SeventhCircuit tialartstechniques."' by responded construing
18 U.S.C. ? 231(a)(1) (2000). See supranote 34 and accompanying text. 111411F.2d 934, 937 (7th Cir. 1969).
1"0
109
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or thestatute's language-"knowing, havingreasonto knowor ina This retending"-as requiring mensrea of intent.11"2 spectacular of "or" as "and" saved the statutefromthe facial interpretation challenge. In United the Statesv. Featherston, FifthCircuit rejecteda similar challengeto convictions under 18 U.S.C. ? 231(a)(1).11 The defendants were membersof the Black AfroMilitant Movement who taught othershow to assembleexplosivedevices ("BAMM") in preparation "the comingrevolution.""4 for There was no evidence ofplans by the groupto instigate revolution; defenthis the such an event,as one of themput it, "whendantswere awaiting ever it came.""' In upholdingthe convictions, FifthCircuit the referenced (and apparently adopted) the SeventhCircuit'sconof struction thestatute and concluded thatit was "sufficiently definiteto apprisemenof commonintelligence itsmeaning of and apThe courtcharacterized defendants "standing the as plication.""6 and and facilities law readyto strike transportation communication enforcement operationsat a moments[sic] notice" and asserted that"[t]hewords'clear and present danger'do notrequirethatthe await the fruition planned illegal conductof such of government natureas is hereinvolved.""7 These cases suggesttwo conclusions. at First,in theory, least some courtsfindit important have a mens rea of intentfor to instructional the criminally speech.Second,in practice, same courts are reluctant let a poorlydrafted to statutestandin the way of a In conviction. both cases, the courtspreserved statuteand althe to lowed prosecutions continueby imposinga mens rea much thanrequiredon the statute's face. As a result,18 U.S.C. higher ? 231(a)(1) remainson the books withan apparentmens rea reof or quirement "knowing havingreason to know or intending." The statute thisform in that convicfirst, future poses twodangers:
Id. ("But [petitioner's or argument] ignoresthe 'knowing, havingreason to know or intending' of language of the statute.The requirement intentof course 'narrows
112
thescope of the enactment exempting or innocent inadvertent conduct from its by (citations omitted)). proscription."'
113
461 F.2d 1119,1121 (5th Cir. 1972). Id. 115 Id. at 1122-23 n.4.
114
116
117Id.
Id. at 1121-22.
at 1122-23.
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tionswillfollowitsplain language;and second,thatthemereexiswithitsoverbroad tenceof the statute, mensrea, willhave a chilleffect permissible on speech. ing Prosecutions under18 U.S.C. ? 231(a)(1) suggest place forPart a III of the CIS test.Under the CIS test,courtsshouldstrike down statutes such as 18 U.S.C. ? 231(a)(1) as facially rather overbroad, theirdefectsand leavingthemon the books. Also, thanpatching to wereCongress pass a version thestatute of thatrequired mens a the CIS test would demand that courtsconsider rea of intent, defendants intent had towarda specific criminal whether goal and whetherthat goal was likelyto occur. Realistically, test will no towardcertaintypesof change lawmakers'and judges' attitudes but and behavior, theCIS testat theveryleastwouldadd structure to inquiries. rigor their 2. A Recent StateLaw Case Under A more recentcase, McCoy v. Stewart,"' thatsuch insuggests are no more structured now than theywere in the early quiries thereis more confusion over the appropriate 1970s. If anything, and remain and standard, intent imminence entangled. Dean McCoy was indictedin Arizona SuperiorCourt on Jerry in one countofparticipating a criminal street gang,a class twofelThe Arizona statute underwhichhe was indicted ony.119 provided in streetgangincludes,amongother thatparticipation a criminal in adviceor direction theconduct, or things, financing "[f]urnishing of a criminalsyndicate'saffairs with the intentto management the promoteor further criminalobjectivesof a criminalsyndimemberof a California cate."120 McCoy, a former gang,allegedly of had givenadviceon at leasttwooccasionsto members a teenage Tucson gangcalled the "Bratz" or "Traviesos."121 McCoy was datthemother one gangmember of and thereby came intocontact ing withthe teens at a barbeque and anothergathering.122 McCoy adtheirgangby electing visedgangmembers formalize to to officers, a for to in establish treasury bail money, increasegraffiti "tagging"
118282 F.3d 119 120
122
121282F.3d at 628.
Id. at 628. Ann.? 13-2308(A)(3) Ariz.Rev.Stat. (2001). Statev. McCoy, P.2d647,648(Ariz.Ct.App.1996). 928
626 (9th Cir. 2002).
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theirterritory, recruit to new members, beat and expel disloyal to current and withsome members, to developfriendly relationships othergangs.12' Arizona SuperiorCourt convicted An McCoy and sentenced himto fifteen the Arizona Court of Appeals afyears; and the Arizona SuperiorCourt denied a petition refor firmed;
view.124
In convicting McCoy, the Arizona courtsfocusedupon the intent requiredby Section 13-2308of the Arizona code. McCoy broughta FirstAmendment challenge,claimingthat the statute was unconstitutionally overbroad and criminalizedprotected speech. The Arizona Court of Appeals disagreed, notingthatthe statuteonlyproscribed advice "whenit is given'withthe spoken intent promoteor further criminal to the objectivesof a criminal "Wordsspokenwiththeintent cause thecommisto syndicate."'125 sion of a criminal act," the courtsaid, "are not protected the by FirstAmendment."126 Because the prosecution had providedsufficientevidencefora juryto find thatMcCoy spoke withsuchan inhis Amendment.127 tent, wordswerenotprotected theFirst by thenfileda petition habeas corpusin the U.S. Disfor McCoy trict Courtforthe Districtof Arizona. The district courtgranted the petition, whichwas later affirmed the NinthCircuit.28In by the habeas corpuspetition, district the court granting defendant's this articulatedrationale [of the Arizona courts] "measure[d] to whether againstSupremeCourtprecedent determine McCoy's conviction was reasonable."129 The courtrejectedthe intent-based of insteadwithMcCoy that paradigm theArizona courts, agreeing was the propertest forhis behavior."130 The district Brandenburg courtendorsedBrandenburg on review, appelthe but, explicitly, late courtpurported hingeitsconsideration intent."' fact, to on In
123
124
282 McCoy, F.3dat 628-29. 125 Statev. McCoy, 928P.2dat 649.

126
127
Id.
Id.
See id.at 649-50. 128 282F.3dat 633. 129 Id. at 630. 130See id. at 630-31. 131Id. at 631 ("Far from a specific intent further to demonstrating illegalgoals, to moreclosely profile mereabstract the of of McCoy'sspeechappears fit advocacy lawlessness.").
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were focusednot at all upon the court'sfindings however, circuit whether the objectivesof a McCoy intendedto "further criminal criminal whether but rather "anyonewould act upon syndicate,"'32 on [hisspeech]imminently."'33 courtfoundthatit was unlikely The thatanyonewould have done so and thatMcCoy merely advised the gang members followcertainprocedures"at some timein to the future," and when" theyshoulddecide to expandtheirop"if erationsin the ways McCoy advised.'34 The courtconcludedthat, "[b]ecauseMcCoy's speechto theBratz... at mostadvocatedlawlessnessat some indefinite future time,and did not incitelawlessness, it was protectedby the First Amendment."'13Hence, the NinthCircuit's immiturnedon Brandenburg's ultimately inquiry nenceprong.The courtfeltso strongly about Brandenburg's relevance thatit overturned statecourts'rulings "an unreasonas the able application clearlyestablished of Federal law, as determined the SupremeCourt of the United States,"as requiredforthe by of from undertheAntistateconvictions granting habeas petitions terrorism Effective Death Penalty Act of1996.136 and At least one SupremeCourtJustice disagreedwiththisanalysis the lowerfederalcourts. Whenthe Courtdeniedreviewof the by Ninth Circuit decision in McCoy, JusticeStevens appended a statement the denial of certiorari.137 to Justice Stevens observed thatthe "harshsentence a relatively minor offense" reason was for forthe Courtto refuseto considerreinstating convicthe enough As court's Justion.138 to thecircuit however, Brandenburg analysis, tice Stevens said that "[w]hile the requirement that the conseis withrespectto mere advocacy, quence be 'imminent' justified the same justification adhereto some speech does not necessarily that performs teachingfunction."139 suggestedthat "[1]ong He a of criminalenterprises-which range planning may include oral of and perhapsthe preparation written advice,training exercises,
132 133 134
Ariz. Rev. Stat.Ann. ? 13-2308(A)(3) (2001).
282F.3dat 632.
Id.
135Id.
136 137
certiorari).
138Id.
139
Id.; see 28 U.S.C. ? 2254(d) (2000). Stewartv. McCoy, 537 U.S. 993 (2002) (Stevens,J.,opinion regarding denial of
Id. at 995.
at 993.
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2011
characterized materials-involves speechthatshouldnot be glibly as mere 'advocacy' and certainly many create significant public Stevensobservedthatthe Court had "not yet Justice danger."140 the and Amendment considered whether, ifso to whatextent, First and concludedthat"denial of such instructional speech" protects of in certiorari thiscase shouldnotbe takenas an endorsement the Stevensappeared as of the Courtof Appeals."'41Justice reasoning certainabout the NinthCircuit'serroras the NinthCircuithad of been abouttheerror theArizonacourts. the This case succinctly demonstrates level of confusioncurof instructional courts' understanding criminally rently plaguing courts Not onlydid theArizonaand federal disagreeabout speech. the dangerposed by his speech,but the McCoy's mens rea and and the SupremeCourt the Arizona courts, lowerfederalcourts, standard apply.The creation to abouttheappropriate all disagreed instructional of the formal of criminally category speech and the of implementation a clear standardcould help to eliminatethis at The CIS testwouldbe particularly effective focusing confusion. on whether theinquiry themostcrucialelements: McCoy intended his criminal and howlikely speechwas to do so to facilitate activity, suchactivity said,how imminent was). In (not,as theNinthCircuit thesematabout exactly thiscase, therewas seriousdisagreement of difference ters.This disagreement may indicatean underlying too betweenstateand federalcourts severeforanytestto opinion But if the CIS testwere in place at the timeof McCoy's remedy. wouldat leasthave had to conthentheArizonacourts conviction, more standard thatrequired form an agreed-upon to constitutional and moredemanding structured findings. inquiries FederalLaw Case Under 3. A Recent to In 1999, Congresspassed an amendment the Antiterrorism Death PenaltyAct ("AEDPA") that criminalizes and Effective of instructional broad categories criminally speech.'42SenatorDiof in first the amendment the aftermath anne Feinstein proposed
140
141
142
Id.
Id.
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discovered the 1995 Oklahoma Citybombing,"'' wheninvestigators instructions that TimothyMcVeigh had relied on bombmaking Ratherthanpassthe from books and perhapsalso from internet.'" at ing the amendment thattime,Congressrequiredthe Attorney on and Generalto preparea report thenecessity, feasibility, constiinformation building on bombsand other of tutionality restricting Departmentof Justicestudyrecomexplosives.'45The resulting mended a few changesto the languageof the FeinsteinAmendWhen the shootingsat Columbine High School again ment.'46 in the thrust issue into the spotlight 1999,'47 Congresswas ready The amendment, enacted withinfour witha statutory response. in pertinent of months theColumbine part: provides shootings, It for (2) Prohibition. shallbe unlawful anypersona the or to teachor demonstrate making use ofan explosive, (A) or destructive device,or a weaponof mass destruction, to distribute anymeansinformation to, by pertaining in wholeor in destructive the or device, part, manufacture use of an explosive, that or weaponofmassdestruction, theintent theteaching, with or be or of, demonstration, information used for, in furtherance a of or an activity constitutesFederalcrime violence; that or to (B) to teachor demonstrate anypersonthemaking use of an explosive, destructive a or a weaponofmassdestrucdevice, to tion,or to distribute anyperson, anymeans,information by
'43See 143 Cong. Rec. 11,426-29(1997).
144 The booksdiscovered inMcVeigh's wereRagner Homemade Benson, possession A C-4A Recipe Survival: Recipe Survival Benson, Ragnar's for for (1990)andRagnar YourArsenal Secure and Weapons: Building Keeping (1992). BigBook ofHomemade
See U.S. Dep't of Justice, Inof 1997Reporton theAvailability Bombmaking at formation, http://www.usdoj.gov/criminal/cybercrime/bombmakinginfo.html (last accessed Aug.26,2005). usedexEric HighSchoolshooters, Harrisand DylanKlebold, 147The Columbine a as attack. Policefound totalofseventy-six explosive plosives wellas gunsin their in at as cars devices theschool, wellas additional devices theshooters' and at their Bomb Summary, available at homes. See Jefferson County, Co. Sheriff, (last achttp://www.cnn.com/SPECIALS/2000/columbine.cd/Pages/BOMBSTEXT his with website discussed experiments building cessedAug.26,2005).Harris's pipe & In links anarchy to websites. MikeAnton Lisa Ryckman, See bombsandprovided Hindsight, Signs to KillingsObvious,Rocky MountainNews,May 2, 1999,at (last accessedSept. http://denver.rockymountainnews.com/shooting/0502why10.shtml 24,2005).
146
See 143 Cong. Rec. 11,427(1997).
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the or to, pertaining in wholeor in part, manufacture use of an destructive device,or weapon of mass destruction, explosive, that suchperson intends use theteaching, to demonstraknowing or information or infurtherance an activity conthat for, of, tion, of stitutes Federalcrime violence.148 a Part (B) of thisprovision would be unacceptable underthe CIS mensrea of knowledge. The first testbecause it onlyrequiresthe has but partof the statute no likelihood requirement, its mensrea to conforms the demandsof the CIS test.The first requirement 49 Statesv. Austin, was under underthe statute, United prosecution the of part(A) and illustrates complexity prosecuting pure speech, was withor without CIS test.The defendant, the Sherman Austin, old and living at withhis mother thetimeof his aryears eighteen rest. Austinwas charged under18 U.S.C. ? 842(p)(2)(A) formaterial The posted on his website,www.raisethefist.com. site expressed viewsand includeda "Reclaim Guide" withinAustin'sanarchist International Fund and World structions disrupting for Monetary The guide,whichAustinclaimednot to have writBank events."1 ten but to have mirrored fromanotherwebsite,"'containedsectionson "Police Tacticsand How To Defeat Them" and "DefensiveWeapons" thatincluded instructions. bombmaking of Under properapplication the CIS test,it is doubtful, though It not impossible, thatAustincould be convicted his activities. for or is not clear thatanyonewas likelyto use the instructions that themto be used. The defensesubmitted Austinactuallyintended who foundthat Austin the assessmentof a clinicalpsychologist of notappearto have seriously considered ramifications" the "d[id] had the Reclaim Guide "and would have been horrified posting someone been injured."152' Too littleinformation available to is
18 U.S.C. ? 842(p)(2) (2000). CR-02-884-SVW(C.D. Cal. Aug, 4, 2003). web The originalraisethefist.com site has been shutdown. The Reclaim Guide is "5o available forviewingat http://forbiddenspeech.org/ReclaimGuide/reclaim.shtml (last accessed Aug. 26, 2005). "5'See David Rosenzweig, Man Gets 1 Year for How-To on Explosives, L.A.. Times,Aug. 5, 2003, at B3. 152
148
149United States v. Austin, No.
Id.
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or of make a completeassessment either Austin'sintent thelikely use ofhiswebsite others. by and The saga of Austin'sprosecution showshow unpredictable can suchinquiresas to intent facilitation be. The fedor subjective in in Austina plea of fourmonths eral prosecutor thecase offered in house. Austinacceptedtheoffer, jail and fourmonths a halfway butpresiding Judge StephenWilsonrejectedtheagreement, saying was not "takingthe case seriously thatthe prosecution enough" and orderedthefederal to prosecutor clear theproposedplea barin gain withFBI and JusticeDepartmentofficials Washington, When the prosecutorreturnedwith the same proposed D.C.'53 at agreement a secondhearing, JudgeWilsonagain rejectedit and of JudgeWilson's imposeda sentence one yearin federalprison.'54 difference opinionwiththeJustice of (the Department prosecutor whichhad contributed the drafting theFeinstein of to veryagency involvedin asillustrates degree of subjectivity the Amendment) of like the sessing dangerimposedbytheactivities individuals Ausrebut tin.Adoptionof the CIS testmayalleviate, cannotentirely movetheriskof,suchsubjectivity.
V. OBJECTIONS
This finalPart attempts addressthe mostobvious objections to that:(1) it to the CIS test.These criticisms includethe arguments are modelsthewrongdoctrinal itsrequirements too (2) paradigm, of it is overprotective speech,and (4) it is underprotecvague,(3) tive ofspeech. A. Low-ValueSpeechas an Alternative Paradigm In confronting instructional criminally speech,thereis a strong it to denyFirstAmendment tendency protection assimilating to by low-valuespeech. The Court has used the low-valuerationaleto to and denyconstitutional protection fighting words"'5 obscenity"6
153Id.
v. Chaplinsky New Hampshire,315 U.S. 568, 571-72 (1942). 413 U.S. 15, 23-24 (1973) (denyingconstitutional See Millerv. California, protection to defendantwho mailed unsolicitedmaterialsdepicting sexuallyexplicitacts to California residents).
"'5 See
156
154 Id.
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for and to providelesserprotection privatelibel,' certaindiscloand suresof private The lowspeech.159 information,'58 commercial is value doctrine, and would be however,generally problematic to instructional so speech. particularly in itsapplication criminally has its roots in dicta in Chaplinsky The low-valuedoctrine v. wherethe Courtfoundthat"certain New Hampshire, well-defined limitedclasses of speech" made no contribution and narrowly to and thusdid not merit the goals of the FirstAmendment protecThese classesof speechincluded"thelewd and obscene,the tion.160 the or words,"all of profane, libelous,and the insulting 'fighting' whichwere foundto be "no essentialpart of any expositionof social value as a step to truth thatany ideas" and "of such slight themis clearly thatmaybe derived from benefit outweighed the by in socialinterest orderand morality."161 itselfimpliessome of the doctrine's This presentation difficulthatsuchspeechis unprotected the ties.At first, Courtsuggests becontent and makes no contribution to cause it has no meaningful as discourse-the speech might well be nonsense.Because public to such expressiondoes not contribute the goals of the First it need not be affordedany protection. Yet, the Amendment, thattherealproblem notthatthewordslack is Courtthensuggests riskto "orderand movalue,butthatthey pose a negative positive the is It thusbecomes unclearwhether doctrine founded rality."'62 social value" or thatit on the premisethatthe speechhas "slight of words"in Chapsocial value. The analysis "fighting has negative as the confirms ambiguity, the Court first assertsthe low linsky wordsbutlaterseemsto testthembased on their value of fighting the of likelihood "provok[ing] averagepersonto retaliation."163 has the Thus,from outset,the doctrine exuded a dual focuson value. This leaves open thepossibility in and negative that positive
See Gertzv. RobertWelch,Inc.,418 U.S. 323, 344-46 (1974). 157
constitutional See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491 (1975) (providing to who publishedthe name of a rape victimobtainedfrompubprotection a reporter lic records). 159 See Va. State Bd. of Pharmacy v. Va. Citizens ConsumerCouncil, 425 U.S. 748, 770 (1976). 160
15s 161
162
163
315U.S. 568,571-72(1942). Id. at 572.
Id.
Id. at 574.
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the areas, such as fighting words,libel,and obscenity, "low-value" label is a misnomer, the in disguising Court'sreal interest regulatbased on harm.'" Anotherproblemwiththe low-value ing speech of testis thesubjectivity anyassessment "socialvalue." Thissubof in is cases,where jectivity perhapsmostpronounced the obscenity reasonable people disagreestrongly about both the value of the the speech and the harmit poses. For some observers, factthat is another's makes "low value" a far "one man's vulgarity lyric"'65 too tenuousfoundation whichto restFirstAmendment on freeEven if the low-valuedoctrine's generalproblemsdo not overto whelmit,its application criminally instructional speechhas parThe ticulardifficulties. doctrine foundedon an assumption is that no worth certain have virtually content Yet, expressions protecting. of expressions the same kindthatdo have valuable elementsare materialthat "taken as a whole, protected.Thus, pornographic lacksseriousliterary, or value" is unproartistic, political, scientific tected,while that which has a modicumof such value is prois defamation privateindividuals less proof tected.167 Similarly,
164 M. The of 48 See Jeffrey Shaman, Theory Low-Value Speech, SMU L. Rev.297, 348 (1995) (arguing to theextent so-called that "lowvalue"categories reguare that are causeharm notbecausethey presumed be and to "it be lated, should becausethey lowincommunicative value"). v. California, U.S. 15,25 (1971). 403 165 Cohen relevant democratic is to note13,at 681("[A]llspeech potentially See Post, supra 166 ."). self-governance.... 413 U.S. 167 Miller California, v. but 15,24 (1973).Thisis thecase forobscenity not, in The that as itturns for out, child suggested NewYorkv.Ferber pornography. Court 458 childpornography be might low-value speech, U.S. 747,762 (1982),butthatinAshcroft Free Speech v. later terpretation was rejected categorically the Court. by did is Coal., 535 U.S. 234,251 (2002) ("Ferber notholdthatchildpornographyby someworks this in the definition without value.On thecontrary, Courtrecognized have significant value." (internal citations the Rather, omitted)). category might a and Court on said,"Ferber Ashcroft upheld prohibition thedistribution sale ofchild becausetheseactswere'intrinsically related' as pornography, wellas itsproduction, Id. the to thesexualabuseofchildren." at 249.Thissuggests another inwhich yet way for collateral Courtmight speech: ban consequences, regardless explicitly itsharmful is used and to consider here woulddrastically it of itsvalue.This rationale rarely for the consideration further research widen scopeofthis Note.Butitis an interesting to whether Courtmight the take a collateral-damage approach highly dangerous for or of suchas instructions biological chemical forms criminally instructional speech, in is district court Such an approach suggested at leastone relevant case, weapons.
doms.166
had the that information beenobtained the instructions weapons-making (despite fact
UnitedStatesv. The Progressive, Inc., where a court enjoined publicationof nuclear
2005]
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because speech about publicfigtectedthanthatof publicfigures to uresis thought have morevalue to oursociety's "freedebate" of Such distinctions an immediate ideas.'68 present problemforcrimiinstructional Consideran environmental who activist speech. nally her opposition thetimber to whilealso explainindustry expresses loging to a fewpeers how to "spike" treesin orderto obstruct This speech is simultaneously criminal and instruction poging.'69 the liticalexpression, typeofspeechmostuniversally as recognized the within ambitof FirstAmendment protection.170Under a lowthe value analysis, speech'spoliticalcontent argue forpromight if In her tection. contrast, a listener followed instructions, the with for resultthatthe speakerwas prosecuted aidingand abetting, the of her speechwould become irrelevant. politicalnature Assuming thepresenceoftherequisite she for intent, wouldbe convicted the of of criminal content herspeech,regardless itspolitical content. is and Aidingand abetting themosteasilyrestricted leastconstiof form criminally instructional tutionally problematic speech.And in the aidingand abetting, value of yetit is clearthat, criminalizing The factthat aiding-andthe speech is not whatwe are tracking. double as valuable politicalexpression abetting speech also might to of If is immaterial the definition the offense itsprosecution. or inthis is true forthe most easily identifiable type of criminally structional speech, the low-valueanalysishas littleplace in the of conceptualization thelarger category. B. The Vagueness an Intent Test of Some critics of might pointout thatapplication an intent-based has its own inherent testforcriminally instructional speech problems. While it is easy to say that criminal intentshould govern in criminal the is liability, reality intent inquiry practically impossible. The most obvious responseis that many othercriminaloffromthe public domain) on the basis of national security 467 F. Supp. 990 interests. (W.D. Wis. 1979). See 18 U.S.C. ? 1864 (2000) (discussing"tree spiking"law and criminalizing use of an "injuriousdevice" on federalland "withthe intent obstruct harass the harto or of vesting timber"). 170 See, e.g.,AlexanderMeiklejohn,PoliticalFreedom:The Constitutional Powersof the People (1960); BeVier, supranote 11, at 299; Bork,supra note 11, at 20.
169
168
v. Gertz Robert Welch, Inc.,418U.S. 323,340(1974).
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As Brennannoted,it fensesalso requireintentinquiries. Justice as to "has been some timenow sincethelaw vieweditself impotent is the actual state of a man's mind.""' That inquiry one explore and for whichit is withwhichthe criminal law is quite familiar equipped. of thateither elements thetestwill the Still,critics might predict or be so difficult prove thatit will be worthless, it willhave a to of ill-advised effect encouraging of imputations conslippery-slope but structive intent. Both of these are certainly possibilities, they That are also possibilities witha host of othercriminal offenses. from behavhas our circumstance notprevented society outlawing in of ior thatwe believe is wrong.The difficulty an intent inquiry in simply anycontext requiresus to make inquiries the mostdisciand rigorous concern thereafor withutmost waypossible, plined sonabledoubtstandard. C. Overprotection too Some might arguethattheCIS testrestricts little speech.Afintent get awaywithpubcan terall, a speakerwho lacks criminal the exact same information whicha criminally-minded for lishing on The testthushas no effect the availabilpersonis prosecuted.'72 information. ityofdangerous The problem is withthisobjection thata morerestrictive regime would inevitablycriminalizespeech at the heart of the First to as Amendment. First, alreadynoted,it is practically impossible thatwould notinterdevisea testwitha lowerintent requirement ferewithlegitimate practices.Someone who publishes reporting harmful information orderto exercisehis expressive in potentially
147, 154 (1959). See, e.g.,Hit Man On-Line: A TechnicalManual forIndependentContractors, at (last accessed Oct. 24, 2005) (claiming a First http://ftp.die.net/mirror/hitman/ to Amendment right post the book online). For a site pushingthe boundarybetween see protectedexercise of free expressionand unprotectedcriminalinstruction, "Parazite" website at http://members.fortunecity.com/parazite/files.html (last accessed materialincludingHit Man and Oct. 25, 2005) (protesting censorshipby mirroring Sherman Austin's Reclaim page while also stating,"I do share (more or less) Mr. Austin's political views, and I do condone, advocate and incite the use of violence authoritiesand political figuresincludingthe presidentof against law enforcement USA. This fileand all information thissite (a.k.a. Parazite) is violating18 U.S.C. ? on the 842(p)(2)(A) ... So SUE me FBI CLOWNZ! readersplease notify police").
172
171Smith California, v. 361 U.S.
2005]
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freedom seem frivolous, it is difficult distinguish but to this might who reportssimilarinformation the in person froma reporter course of a news story. someone who postsa poisoning Similarly, method for no particularreason is hard to differentiate from An to Agatha Christie. approachthatattempted screenall potenharmful information wouldrestrict greatdeal ofspeechthat a tially we generally recognizedas protectedand, in some cases, fundamental. has to Second,thespeechin questionitself a role in contributing A thegoals oftheFirstAmendment. good deal ofwhatmanypeoas ple would characterize "low-value," dangerousspeech actually has politicaland cultural In aspectsthatshouldnot be discounted. instructional manypublications, criminally speechis partof political discourse. When thatdiscoursespillsover intoan actual intent to breakthe law, and theintent likelyto be actualized, is thenthe loses itsprotection. it is possiblethatSherman But Austin's speech decision to link to bombmaking recipes reflectedhis political stancetowardthe WorldTrade Organization morethanan actual desireto attackpolice or anyoneelse. Less controversially, inan in terest "backyard ballistics" can simply a libertarian imexpress and pulse to do whatone wantswithone's property resources. instructional also has itscultural Criminally speech aspects.Most it can be educational.Teachersand producers chilfor obviously, dren's televisionhave long understoodthat the best way to get in children interested scienceis to blow something There are up. who will not let theirteenagers video games but will parents play give themfreereinwiththe family copy of BackyardBallistics.173 Less obviously,criminally instructional speech supportssubculturesnot unlikethose dedicatedto extreme sportsor otherhighriskactivities. parallelto gunculture, The whileit maynot salvage thistypeof speech in some people's eyes,is a veryapt one: The culture a involves greatdeal surrounding and gunpublications guns more than shooting let things, alone shooting people. It involves in sex,and power,as well as moremundaneinterests outpolitics, door recreation and mechanicaldesign.We mighthold some of these aspectsof gun culturein low esteem,but we are probably correct regarding magazinesmore as vehiclesfora general in gun
173
See WilliamGurstelle, BackyardBallistics(2001).
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thanas inherently manualsthatdo not worldview dangerous killing A merit FirstAmendment protection. Google searchofbombmakwebsiteswill uncovera similarly textured subculture. ing Again, thisdoes not make a gun or bombfetish cultural the of equivalent a penchant Keats. The pointis simply for thatpeople can be interestedin criminal without instruction in necessarily beinginterested crimes. committing D. Underprotection If the above is true,then why criminalize any speech at all? Thereare a fewresponses. on First, themostpractical level,we are alreadydoingit. Legislatures pass laws criminalizing pure speech, and courts, even whentheythink incitement the doctrine standsin theirway,manipulate to allow convictions. clear standard it A is that is currently the preferableto the de facto criminalization norm. Second, to put it bluntly, people who communicate dangerous withcriminal intent deserveto be punished. The freedom messages ofspeechshouldbe one ofourmostrobust but rights, itshouldnot extendto wordsthatseek a stake in a criminal whether venture, succeed in finding such a ventureor not. Scholarsotherwise they concernedto protect freeexpression have takena similar stance. Professor Kent Greenawalt, criminal inintentionally considering concludesthat"the justifications freespeech... do for struction, not reach communications are simplymeans to get a crime that ProfessorThomas Emerson has prosuccessfully committed."'74 under which"conductthat posed a systemof speech regulation amountsto 'advice' or 'persuasion'would be protected; conduct thatmoves into the area of 'instructions' 'preparations' or would And Professor LaurenceTribe has said that"the law need not."17' not treatdifferently crimeof one man who sells a bombto terthe rorists and thatof anotherwho publishesan instructional manual forterrorists how to build theirown bombs out of old Volkson
wagen parts."176
174 175 176
Kent Greenawalt,Speech, Crime,and the Uses of Language 85 (1989). Thomas I. Emerson,The SystemofFreedom of Expression75 (1970). Laurence H. Tribe,AmericanConstitutional Law 837 (2d ed. 1988).
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is on The best objection notthattheCIS testis too restrictive its Even a well-crafted face but thatit risksa slippery slope effect. in standardcan cause harmwhen applied by judges uninterested of therights tax evadersand WorldTrade Organization protestors. this danger. In ShermanAustin's prosecutionvividlyillustrates of eflightof the unpredictability courtsand the possible chilling some speech protectionists would argue fectsof any regulation, for instructional thatall criminally speechshouldbe protected proreasons. phylactic This is a compelling level, however, objection.At a normative seekoccurshouldnotdeterus from aboutwhatmight predictions whatthe properstandard shouldbe. Moreover, to understand ing statutes like 18 U.S.C. ? 842(p), 18 U.S.C. ? and morepractically, 231(a)(1), and Ariz. Rev. Stat. ? 13-2308existat the federaland the statelevel.Even moreintractably, crimeof aidingand abetting for to of willcontinue involveprosecutions some forms criminally have no defendants instructional conditions, speech.Undercurrent to a idea how bestto defendthemselves. Refusing implement clear for standard such speech does not mean thatit will not be proseor cuted, predictably fairly. justthatitwillnotbe prosecuted
CONCLUSION
of This Note has argued for the recognition the categoryof of instructional and theinstitution theCIS testto speech criminally It evaluatesuchspeechundertheFirstAmendment. has examined instructional case law on criminally the existing speech and concluded thatthe current approachis crippledby generalconfusion over the properstandardand a dangerousrelianceon the inciteand likelimentdoctrine. Adoptionof the CIS test,withits intent and wouldbring much-needed structure clarity hood requirements, but area oflaw. to an underdeveloped potentially potent

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A Test for Criminally Instructional Speech Author(s): Leslie Kendrick Reviewed work(s): Source: Virginia Law Review, Vol.

III. THE CIS TEST ..........................................................................1995

V . O BJECTIONS 2014 .............................................................................

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test THIS Notewillpropose a FirstAmendment forcriminally instructional instructional speechis expresspeech.Criminally

A Testfor Criminally Instructional Speech

'Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095,1103 (2005).

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A Testfor Criminally Instructional Speech

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A Testfor Criminally Instructional Speech

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v. States Peoni,100F.2d401,402(2d Cir.1938). United

336 U.S. 613, 619 (1949).

A Testfor Criminally Instructional Speech

v. 402 United States Peoni,100F.2d401, (2d Cir.1938).

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See Volokh,supranote 1, at 1185.

A Testfor Criminally Instructional Speech

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A Testfor Criminally Instructional Speech

United Statesv. Barnett, 667 F.2d 835,842 (9th Cir. 1982).

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A Testfor Criminally Instructional Speech

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A Testfor Criminally Instructional Speech

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A Testfor Criminally Instructional Speech

to Not likely incite Advocacy

Nointent Intent Intent Intent

to Likely incite to Not likely incite to Likely incite caused Already

Advocacy Advocacy Incitement & Aiding Abetting

Protected Protected Unprotected Unprotected

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See Buttorff, F.2d at 623-24. 572

A Testfor Criminally Instructional Speech

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A Testfor Criminally Instructional Speech

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A Testfor Criminally Instructional Speech

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A Testfor Criminally Instructional Speech

ment.81 Paladinwas decidedon a motion summary for Both judgment.

in itsmens First, relation Perry rea. to Paladin himself, stipulated

to crucial facts, parties stipulated certain which ultimately proved

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Id. at840. Id. at838.

A Testfor Criminally Instructional Speech

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128F.3dat263-64. 98Paladin, 99 at 265. Id.

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101Paladin, 940 F. Supp. at 842.

A Testfor Criminally Instructional Speech

354 U.S. 298 (1957).

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A Testfor Criminally Instructional Speech

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626 (9th Cir. 2002).

A Testfor Criminally Instructional Speech

282 McCoy, F.3dat 628-29. 125 Statev. McCoy, 928P.2dat 649.

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Ariz. Rev. Stat.Ann. ? 13-2308(A)(3) (2001).